I suppose with the transfer window having just closed I should try and make some kind of tenuous link between the start of the football season proper and the Court of Appeal decision in Gutridge & ors v Sodexo & anor [2009] EWCA Civ 729. However I can’t think of one so I will move quickly onto the Court of Appeals decision in this case.
The important bit is that the Court has confirmed that equal pay claims against transferees begin to run from the date of the transfer. This is a practical solution to what was potentially a very difficult issue for a transferee especially in relation to local government contracts where there are many thousands of potential claims arising out of single status. The problem was that many years after a transfer a transferee could have been faced with an equal pay claim which arose before the transfer and about which the transferee would have little or no knowledge (see Elias’s judgment in the EAT).
Although this is a practical solution Lady Smith’s dissenting judgment should be read. Although she saw the problem she came down on the employee's side. In fact the Equal Pay Act allows exactly that when you stay with the same employer it is simply the arrears that are limited by the six year time limit.The argument is persuasive as the Equal Pay Act is all about implying an equality clause into the contract and as the contract is transferred it is difficult to see why time should run from the transfer.
The important bit is that the Court has confirmed that equal pay claims against transferees begin to run from the date of the transfer. This is a practical solution to what was potentially a very difficult issue for a transferee especially in relation to local government contracts where there are many thousands of potential claims arising out of single status. The problem was that many years after a transfer a transferee could have been faced with an equal pay claim which arose before the transfer and about which the transferee would have little or no knowledge (see Elias’s judgment in the EAT).
Although this is a practical solution Lady Smith’s dissenting judgment should be read. Although she saw the problem she came down on the employee's side. In fact the Equal Pay Act allows exactly that when you stay with the same employer it is simply the arrears that are limited by the six year time limit.The argument is persuasive as the Equal Pay Act is all about implying an equality clause into the contract and as the contract is transferred it is difficult to see why time should run from the transfer.
I believe what this case really comes down to is the application of the House of Lords judgment in Powerhouse Retail Limited v Burroughs and others [2006] UKHL 13. This is why it is unlikely that this is the end of the matter so watch out for a further appeal to the House of Lords or perhaps even an ECJ reference.
Peter D
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