1/ The question in Barnard v Hampshire Fire & Rescue was when does a promotion break a stable working relationship for the purpose of determining whether that category of equal pay claim is brought in time. assets.publishing.service.gov.uk/media/5dfc86c3… #ukemplaw
2/ That is a question of some importance where an equal pay claim relates either to a number of consecutive periods of employment for the same employer under different contracts, or to employment on a contract prior to the contract in effect at dismissal.
3/ As a reminder, here are the relevant subsections of EqA s.129-130: 
4/ In Preston (No. 3), HHJ McMullen had set out a 4-fold test, focusing on short contracts changed with regularity, such that when teachers who'd been on a succession of short-term contracts were given a permanent contract, the stable working relationship ended.
5/ Then in Thatcher v Middlesex Uni, HHJ McMullen focused on when a stable working relationship would come to an end, providing 5 situations in which it would be brought to an end, the 5th of which is the Preston (No. 3) situation:
6/ That position was then endorsed in a number of cases until the CA in Slack v Cumbria CC adopted a broader approach of recognising that an uninterrupted succession of contracts provided strong indication of a stable working relationship.
7/ The broader Slack approach was then adopted by the CA in North Cumbria v Fox, where the CA held itself bound by Slack. The CA accepted that contractual changes only bore relevance to the stable working relationship question if throwing light on the issue.
8/ The EAT in Barnard opined that in the absence of authority ("drinking from the pure waters of the statute"), internal promotions as a matter of natural progression would be entirely consistent with continuation of a stable working relationship.
9/ The Preston (No 3) approach (as followed in a number of subsequent EAT decisions) was unduly restrictive. This was corrected in Slack & Fox so that a broad, non-technical approach is to be adopted.
10/ The EAT was still troubled by Fox rendering relevant the character/nature of the work, whereas the statutory wording suggests it's the nature of the relationship rather than the work undertaken which is important. In spite of that reservation, Fox is binding.
11/ The EAT was also reluctantly required to pay regard to the decision of HHJ Barklem the 1st time Barnard reached the EAT, where he accepted a concession that a significant/fundamental/radical change in the nature of the work could break a stable working relationship.
12/ However, the EAT felt able to depart from HHJ Barklem's suggestion that relevant to the radical change question was matters such as the percentage pay increase, & the precise nature of difference in responsibilities. That was overly technical & thus wrong in light of Fox.
13/ The jump in Ms Barnard's pay grade was thus found by the EAT to be immaterial, as was the change from a technical role to a managerial one. It made no sense that B would have been in a better position if those changes had been made instead by agreed variation to contract.
14/ A factor convincing the EAT their broad approach was right was that the historic reason for amending the statute to add a stable working relationship gateway was to remove a barrier to an equal pay claim rather than to impose new barriers.
15/ The ET had made the error of elevating a difference in job content due to a promotion into a determining factor, ignoring the weight to be given to stability of the relationship between employer & employee as well as the natural progression in B's promotion.
16/ Even if the EAT was wrong & the ET's approach didn't show an error of law, it was perverse to suggest that a promotion as part of a natural progression within a department ended the stable working relationship. The appeal was allowed & @DaphneRomneyQC prevailed. #ukemplaw
