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Part-timers progress on long march to Europe

Part-time workers have a hard life. Many of them are low-paid. Many are women. Many are excluded from occupational pension schemes.

But, supported by their unions, they are fighting back. They are also getting help from the European Court of Justice.

Last December, the ECJ ruled in favour of a mental health officer on the question of the extent to which back-service should be taken into account when calculating pension benefits. This had been unlawfully refused.

Mrs Magorrian worked as an NHS mental health officer in Northern Ireland. An industrial tribunal found that she had been indirectly discriminated against on the grounds of sex, contrary to Article 119 of the Treaty of Rome. This article requires each member state to ensure that men and women should receive equal pay for equal work.

In the Magorrian case, the ECJ ruled that the two-year backdating limit in Northern Ireland legislation was unlawful. It required account to be taken for periods of service by Mrs Magorrian from April 8, 1976. This was the date of another ECJ case which held that Article 119 has direct eff ect in each EC member state.

In 1994, two other ECJ cases, Vroege and Fisscher, decided that the 1990 Barber time limit would not apply to victims of indirect sex discrimination who had not been allowed to join occupational pension schemes. This led to a flood of industrial tribunal cases in the NHS, the education sector, the electricity industry, local government and the banking sector in the UK.

There are now about 60,000 of these cases and there could be many thousands more. The industrial tribunals selected a small number of them to test common issues raised by the employers. The test case concerns two time limits in the Equal Pay Act 1970:

Claims must be commenced no later than six months after leaving service.

Remedies are limited to two years&#39 back membership or compensation for exclusion from membership over that period.

The test cases, known as Preston v Wolverhampton Healthcare NHS Trust, have been heard by the industrial tribunals, the employment appeal tribunal and the Court of Appeal. Each decided in favour of the employers.

If that view prevails in the House of Lords, then virtually all 60,000 claims will fail due to having been brought too late.

The claimants argue that the time limits in the Equal Pay Act are contrary to EC law because they make it impossible in practice to exercise their rights and are less favourable than the time limits for similar domestic actions.

Until the Magorrian case, it seemed that the House of Lords would follow all the lower courts and find against the part-timers because their claims had been brought too late. The hearing in the Lords took place last month, when it decided to refer questions about the validity of the Equal Pay Act time limits to the European Court of Justice.

What does this mean? In practical terms, a decision from the ECJ is unlikely within the next 18 months. However, there is another case, Levez, which may decide some of the issues in about nine months.

The reference to the ECJ will give the employers and part-timers a chance to re argue the scope and effect of Magorrian. This will be done in the context of a wider range of cases, including cases concer ning successive contracts of employment of supply teachers.

So, the long march to Europe continues. Even when the questions are decided and the House of Lords reaches its decisions based on the ECJ&#39s answers, the claimants will have further to go.

Victory on time limits will still leave them having to prove that they are victims of indirect sexual discrimination. They may need to pay back contributions, they will need to prove their employment history going back years and records may no longer exist.

The employers may justify the exclusion of part-timers on the grounds of administrative difficulty. So, the hard life continues.


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