UK: Employment Bulletin - December 1998

Last Updated: 1 December 1998
Equal Pay: Look Back In Anguish?

The Equal Pay Act 1970 holds little by way of Christmas cheer for employers. Its scope has gradually been widened by successive Tribunal decisions to include not just current colleagues but also those who preceded or indeed followed the claimant in the service of the employer. There have, however, always been two sources of comfort (using the word in a strictly relative sense!) in the Act.

First, if an employee has not brought his or her equal pay claim within six months after the end of his employment (or within six months after the inequality is removed, if earlier) then by Section 2(4) the right to do so is lost. Second, even if the claim is brought in time and is won, the employer's liability to rectify the inequality in pay reaches backwards for only two years from the date of the claim (Section 2(5)). The Act contains no discretion to extend either period. If an equal pay claim is lodged towards the end of the six month window permitted by Section 2(4) of the Act, therefore, the employer may find itself owing compensation for little more than 18 months.

Both provisions have provided particular solace to employers facing pension access claims from people who have been excluded from pension benefits by reason of their having worked part-time. In many such cases the employment (or at least the inequality) is long past. Employers facing claims which are not time-barred in this way have known that Section 2(5) would protect them in most cases from the potentially terrifying prospect of compensating for the loss of many years' lost pension rights.

In the UK's main pension access test case, Preston & Others -v- Wolverhampton Health Care NHS Trust & Others [1998] ICR 277 the House of Lords earlier this year asked the European Court of Justice ("ECJ") to help it determine whether either or both provisions may be impugned as contrary to EU law.

In fact the ECJ has already been struggling with the two-year limit issue in another English case, Levez -v- T H Jennings (Harlow Pools) Limited. The ECJ's decision was released on 1 December 1998. It has been widely reported as invalidating the Section 2(5) two-year limitation period altogether, but a close examination of the judgment shows that this may be a case very much on its own facts. In brief, the employer deliberately misled Mrs Levez as to the extent of the disparity between her pay and that of her comparator. In consequence she did not lodge an Equal Pay claim until she found out the true position. The effect of the delay and Section 2(5) combined was to leave her without a remedy for the first seven months of the period of inequality.

The ECJ was asked to consider whether the fixed Section 2(5) limit was contrary to EU law (requiring an effective remedy for unlawful discrimination) on two main grounds: (i) that the limit on compensation was not a factor in other non-gender employment claims, e.g. breach of contract, race discrimination and unlawful deductions (general issues); and (ii) that the reason for the late claim was the employer's default in misleading the employee (a point specific to the case).

On the general point, the ECJ recognised that the interests of legal certainty meant that a fixed compensation period could be justifiable - indeed, it said "a rule under which entitlement to remuneration is restricted to the two years preceding the date on which proceedings were instituted is not in itself open to criticism".

On the case-specific point, however, the ECJ took the view that the absence of a discretion to extend Section 2(5) in the Act was contrary to EU equality law. This was on the basis that to find otherwise would allow or encourage employers to mislead staff about earnings gaps in order to delay or deter the institution of equal pay proceedings. That would deny claimants an effective remedy. In those particular circumstances, the ECJ was prepared in effect to remove the Section 2(5) limitation.

Although Levez did not consider the point, it would perhaps be surprising if a similar view were not taken by the ECJ in Preston in relation to the Section 2(4) time limit on bringing proceedings. Again, the Equal Pay Act gives a Tribunal no discretion to increase this period. One could imagine that if an employee or ex-employee missed the six month window as a result of a misrepresentation by the employer, the ECJ would be astute to rule that lack of discretion unlawful. Certainly it is well accepted that the conduct of the employer, even if short of actual deceit, can be a proper ground for the exercise of a Tribunal's discretion to extend time limits in other categories of claim.

It remains to be seen whether the ECJ in Preston will take a similar view of Section 2(5). It is probable that instead of removing the two year limitation altogether, it will seek to lay down circumstances in which a Tribunal would be justified in exercising a discretion to extend the period under the principles above. The issue for most pension access claims would be the extent to which ignorance of the law or of the relevant facts not caused by any deliberate act or omission on the employer's part would constitute such justification. Our view is that while ignorance of the law will probably not do so, ignorance of the facts on which to base a claim may well amount to a reason for extending the two year period.

In conclusion Levez does not directly have the effect on Equal Pay Act claims which has been attributed to it. That said, it is certainly possible that in inserting a discretion into the two year time limit where strict compliance would make it difficult for the claimant to obtain a proper remedy, the ECJ has opened the door to the gradual broadening of that discretion to include circumstances where the employer is not at fault in any way. Sadly we must wait for their decision in Preston for a definitive view. The latest indications from the Tribunals are that this may not be issued until the second half of next year.

For further information please contact Susan Nickson, e-mail: Click Contact Link , Trinity Court, 16 John Dalton Street, Manchester M60 8HS, UK, Tel: +44 161 830 5000

This article was first published as the December 1998 Hammond Suddards Employment Bulletin

The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions