Philip Goodchild on part-timers' bids for pension rights

Philip Goodchild is a pensions solicitor at Hammond Suddards.

Women part-time workers are waiting for a ruling from the European Court of Justice (ECJ), due 14 September, in the case of Preston v Wolverhampton Healthcare NHS Trust.

This is a test case for 60,000 employees who allege that, contrary to Article 119 of the Treaty of Rome, they were excluded from an occupational pension scheme because they worked part-time. The ruling should give clarification on whether time limits imposed by the Equal Pay Act 1970 (EPA) make it impossible to bring a claim for access to a pension scheme under the article.

The EPA imposes two time limits on claims.They must commence within six months of leaving service and compensation is limited to two years back membership or compensation for exclusion from membership.

If the ECJ rules that the EPA limits make such claims impossible, this could allow pension scheme membership compensation to be backdated as far as 1976. But, if the ECJ upholds the time limits, virtually all the 60,000 claims will fail due to being commenced too late.

Little guidance has been given by the ECJ on this issue. It was hoped that the ECJ judgment in Belinda Levez v TH Jennings (Harlow Pools), would provide clarity on the issue of the two-year backdating limit.

Levez's employer misled her, between December 1991 and March 1993, as to the fact that she had been paid less for carrying out her job as a manager of a betting shop than her male predecessor.

The employer's conduct resulted in a delay in Levez's claim under Article 119 and the two-year time limit under the EPA threatened to deny her a remedy.

The ECJ concluded that the two-year rule made it impossible to enforce Levez's rights under Article 119, but limited the ruling to where the national court has no power to take account of special circumstances. In this case, the fact that Levez had been misled was the special circumstance.

While equal treatment for part-timers is essential, the potential cost of compensation is huge. It may be that contributory occupational schemes escape more lightly than non-contributory schemes, as the cost to claimants of paying back contributions for any backdated period of membership is likely act as a deterrent.