This is a preview. To continue reading please log in or Register to read this article

Equal pay/TUPE: Hospitals in same trust not in same 'establishment'

This report relates to 1 case(s)

  • expand disabled

    Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust [2004] All ER (D) 239 (Nov) EAT (0 other reports)

Key points

In Armstrong and others v Newcastle upon Tyne NHS Hospital Trust, the EAT holds:

  • Female hospital ancillary staff who worked for different NHS trusts after the break up of a district health authority in 1991 could not rely on being in the "same employment" or on "common terms and conditions" of employment for the purposes of s.1(6) of the Equal Pay Act 1970 in an equal pay claim even though some of the NHS trusts had later re-amalgamated.
  • Neither s.1(6) of the Equal Pay Act 1970 nor art. 141 of the EC Treaty applied because the male portering staff, whom the female ancillary workers sought to use as comparators, were not in the "same employment". A "single body or source" was not responsible for equalising terms and conditions.
  • An equal pay claim will survive a TUPE transfer. The equality clause operated to vary the contract of employment and that contract, as varied, remained in force.
  • The employer could not rely simply on an account of historical factors to justify inequality that had a disparate adverse effect on women. This did not amount to a genuine material factor defence as it contained no objective justification for the differentials.
  • A delay of seven months between the hearing and the decision did not render the employment tribunal's decision unsafe as it had made its deliberations immediately after hearing the evidence.