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ECJ Pension Decision + general updates

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1. ECJ Decision - Part-Timers Pensions (Preston v Wolverhampton)
2. Trivia - Dutch court rules workers entitled to smoke-free conditions
3. More EAT decisions
4. Correction of previous bulletin

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1. ECJ Decision - Part-Time Pensions

The ECJ has delivered its judgment in the part-time pensioners case, Preston v Wolverhampton Healthcare NHS Trust, which was referred by the House of Lords. See bulletin of 15th September 1999, in which the AG's opinion was reported.

The ECJ has held as follows:

(a) it is consistent with community law to have a six-month limitation period for claims under the Equal Pay Act; however, if there have been a series of continuing contracts of employment, time must start running from the last of those contracts (i.e. no 6-month limitation period can arise at the end of each, often annual, contract of employment).

(b) it is not consistent with community law to prevent recovery of monies falling due more than 2 years prior to the date when the claim was presented.
Therefore part-timers pension claims can be backdated to April 1976.

John Monks, general secretary of the TUC, says "Once again Europe has shown itself to be on the side of ordinary working people."

For a copy of the ECJ decision, in Word for Windows format, please reply to this Email.


2. Trivia - Dutch court rules workers entitled to smoke-free conditions

A Dutch court has ruled that employers must guarantee that non-smoking staff have a working environment completely free of tobacco smoke. A landmark judgement in the Breda district court, upheld a postal worker's complaint that her exposure to tobacco smoke at the citys sorting office infringed her right to work in a smoke-free environment. The court ruled that Nanny Nooijens employers had failed to satisfy the constitutional rights of citizens under the employment law, which obliges employers to ensure that workplaces cause no harmful effects to employees health.

The Asthma Foundation, which backed the action, believes that there could be thousands of similar cases. A recent national survey in the Netherlands showed that 76% of employees experience problems with tobacco smoke.


3. EAT Decisions

Some 30 decisions have been placed on the EAT website ( in the last week. The vast majority of these turn on their facts, and are of little legal interest. A few deserve mention...

ADI (UK) Ltd. v Willer. [18.4.00, Burton J.]
An unusually clear and readable TUPE judgment - unremarkable on the facts, but remarkable in terms of the clarity with which the EAT sets out the approach tribunals should take to TUPE cases. A 'must' read.

Anya v Oxford University [17.12.99, Holland J.]
An interesting decision, of use to those resisting appeals where it is alleged that the tribunal failed to make sufficient findings of primary fact. In this case (an allegation of race discrimination during selection for promotion to a high academic post), the employment tribunal heard evidence for 11 days. It failed to make findings of fact on several issues. The EAT held that it was wrong to go behind the ET's assessment of what was relevant, and the tribunal was entitled to form an impression 'on the whole' as to whether there had been less favourable treatment on racial grounds.

Hardie v CD Northern Ltd. [5.10.99, Lindsay J.]
Mr Hardie was employed by CD Northern Ltd., and brought a claim under the DDA 1995. The Respondent, which employed only 19 people, argued that the small-business exemption applied (note: the small-business exemption was 20 employees at the time, but is now 15 employees). Mr Hardie argued that the tribunal should include, when counting the number of employees, the employees of closely associated companies (with common employees, intra-company accounts, and inter-ownership of company shares). The EAT rejected this argument, stating that if parliament had intended employees of associated employers to be counted, it would have said so in the DDA - and it did not!


4. Correction of previous bulletin

The previous bulletin (12th May 2000) reported that the House of Lords had upheld the decision of the Court of Appeal in Taylor v Secretary of State for Scotland. In fact, it was the Court of Sessions's decision that was upheld, not that of the Court of Appeal.





As reported in Law Times, Legal Week, Solicitors' Journal and the Law Society Gazette.

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