The Court of Appeal (by a majority of two to one) has upheld the EAT decision in the case of Gutridge and others v Sodexo and another about how to deal with equal pay claims where there has been a TUPE transfer. The case concerned hospital cleaners who had been contracted out to Sodexo under a TUPE transfer but wished to mount an equal pay claim relying on comparators who had not transferred over. The time limit for bringing an equal pay claim is six months.

The Court of Appeal confirmed the position is as follows.

  1. Can an equal pay claim survive a TUPE transfer - is the claimant still in the same 'employment' as a comparator who has not transferred?

Yes. Once a right to equal pay has been triggered, it crystallises and can survive a TUPE transfer;

  1. Can a claim in respect of the pre-transfer period be time-barred?  

Yes. For the Tribunals to consider any equal pay claim relating to the pre-transfer period, the claim must be brought within six months of the TUPE transfer.

  1. When does a claim in respect of the post-transfer period become time-barred?

An equal pay claim in respect of the post-transfer period can be brought at any time up to six months following the termination of employment with the transferee.

Point to note -

  • This ruling puts the transferee in a dilemma. On the one hand, when asking for employee liability information before a TUPE transfer, the transferee will want to know if there are circumstances that might give rise to equal pay claims that have not as yet been filed, but which might relate to periods going back over a period of up to six years . On the other hand, if the transferee does nothing to prompt such claims being made, once six months have elapsed its liability is limited to the post-transfer period alone.