The purpose of the Employment Equality (Age) Regulations 2006 reg.42(4) was to provide for separate occasions when the time for bringing proceedings could be extended. Each sub-section was to be read disjunctively and reg.42(4)(a) did not implicitly limit the operation of reg.42(4)(b).

 

The appellant NHS Trust (X) appealed against an employment tribunal's decision that claims brought under the Employment Equality (Age) Regulations 2006 by the respondent employees (P) had been presented in time. P and a number of older employees (Q) had been engaged upon the same pay scales. Under the Agenda for Change Agreement they were to be assimilated onto a new salary band, which would result in significantly higher pay. X decided to move them to a transitional spine point to slow the pay increments. However, since that could potentially affect the pension of those close to retirement, Q were moved straight to the new salary band, whilst P remained at a lower pay point. One year after the transitional pay provisions ended P brought claims of age discrimination. The tribunal found that the alleged discriminatory act was a continuing act for the purposes of reg.42(4)(b), and the claims had therefore been brought in time. X submitted that (1) P's claim related to the making of a contract for the purpose of reg.42(4)(a), which precluded them from relying on reg.42(4)(b); (2) the tribunal's decision had lacked clarity and failed to draw a distinction between an act and the consequences of an act as required by Sougrin v Haringey HA (1992) ICR 650 CA (Civ Div).

 

HELD: (1) The purpose of reg.42(4) was to provide for separate occasions when the time for bringing proceedings could be extended. Each sub-section was to be read disjunctively and it was not helpful to introduce the idea that reg.42(4)(a) implicitly limited the operation of reg.42(4)(b) (see para 20 of judgment). (2) When reaching its decision, the tribunal should have borne in mind exactly what P's complaint was. It was the substance of the complaint that mattered not its precise formulation, Sougrin and Amies v Inner London Education Authority (1977) 2 All ER 100 EAT applied. The tribunal's decision had been reached on a basis that had not necessarily been addressed by P. Despite stating that P's complaint was about being paid less than Q, it had reached its decision based on consequences and mechanism rather than the act complained of. The tribunal's decision was therefore quashed and the matter remitted to the tribunal to be reheard (paras 33, 38-40).