In North Cumbria University Hospitals NHS Trust v Fox and others the Court of Appeal has, by consent, overturned the decision of the EAT and ordered that, where the claimants and their comparators were employed by different employers, the NHS Trust was not the single source of their terms of employment. A claimant cannot rely upon employees of a different employer as comparators unless their terms and conditions of employment came from the same source. The fact that their respective terms were derived, in each case, from Whitley Council terms, did not establish that single source. Whitley Council was merely the mechanism for determining pay adopted by each Trust rather than the source of the relevant employee’s terms and conditions. All the parties agreed that the Trust, therefore, was not the single source for any of those comparisons in which the claimants were never in common employment.

The order also changed the name of the case, which was formerly known as North Cumbria Acute Hospitals NHS Trust v Potter and others, as the NHS Trust had since changed its name, and Mrs Potter had withdrawn her claim.