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Contents

Hopes rise after AG delivers opinion

Shirley Preston & Others v Wolverhampton Heath Care NHS Trust & Others and Dorothy Fletcher & Others v Midland Bank Plc

In the long-running part timers' pensions access saga, referred to the European Court of Justice by the House of Lords last year, the Advocate General has now delivered his opinion.

The Advocate General has found that the two-year limit on retrospection should be disapplied, although he upholds the six-month time limit which, for teachers and lecturers, should apply in relation to the end of each successive contract.

Since October 1994 trade unions have encouraged workers who have been denied access to pension schemes because of their part-time status to bring claims for backdated access relying on Article 119 of the Treaty of Rome - now Article 141. Over 100,000 claims have been lodged with Employment Tribunals. These are being dealt with through test cases in the private and public sectors, which, so far, have dealt with preliminary issues. The remainder of the cases have been stayed in the Tribunals.

The cases before the European Court of Justice concern three preliminary issues:

whether the six-month time limit from the end of employment for bringing a claim complies with Community law
whether the two-year limit on retrospective access to pension scheme complies with Community law, and
in the case of workers who work regularly for the same establishment under successive contracts, such as teachers, whether the six-month time limit runs from the expiry date of each individual contract.

The Advocate General has assessed each of these preliminary issues against two concepts of Community law: first, domestic procedural requirements must not make it impossible in practice for claimants to exercise their Community law rights (the "principle of effectiveness"); and secondly, the domestic procedural requirements applicable to a claim based on Community law must be no less favourable than the procedural requirements applicable to the nearest analogous domestic claim ("the principle of equivalence").

The Advocate General's view is that the two year limit on retrospective access to pension schemes contained in Section 2(5) of the Equal Pay Act offends the "principle of effectiveness". It is therefore to be disapplied.

The Advocate General gives pointers as to how to identify the nearest analogous domestic claim for the purpose of the principle of equivalence. He rules out a domestic claim under the Equal Pay Act as an appropriate comparator and suggests that a claim (other than discrimination) by a part-timer for access to a pension scheme may be a possible comparator claim. We do not believe that that is the proper analysis - instead, comparison should be made with a claim for backdated wages or a claim for equal pay on grounds of race where no limits apply.

Unfortunately, the Advocate General finds that the six-month time limit from the end of the employment contract for presentation of a claim does not offend the principle of effectiveness.

The Advocate General has found that the six-month time limit applies to the end of each successive contract of employment for lecturers and teachers employed under a succession of contracts. This is disappointing and means that part-time teachers and lecturers would have had to have presented a separate claim after the expiry of each contract of employment - which would have lead to a multiplicity of virtually identical claims.

The Advocate General's opinion will not necessarily be followed by the European Court of Justice when it rules finally in the New Year but it is an indication of the possible outcome.

A fuller briefing is available from Thompsons Employment Rights Unit at Congress House.