The claimants made claims under section 1 of the Equal Pay Act 1970 for equality of pay with male comparators, who, they alleged, were paid more. A job evaluation exercise concluded that the claimants were engaged in work rated as equivalent to that of the comparators and that they had been paid less than the men. Before the claims had been fully determined and quantified, the claimants’ employer went into administration and their contracts of employment transferred to the another company, pursuant to regulation 4 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 . On claims by the claimants against the transferee for equal pay, the transferee contended that liability in that respect had not passed to it, by virtue of regulation 8(5) of the 2006 Regulations, since the amounts owing to the claimants were guaranteed debts payable by the Secretary of State, on the insolvency of an employer, out of the National Insurance Fund under section 182 of the Employment Rights Act 1996 . An employment judge considered, as preliminary issues, whether the claims were for “arrears of pay” at the date of the employer’s insolvency within the meaning of section 184(1)(a) of the 1996 Act when the amount owing had not yet been quantified, and, if so, whether under regulation 8(5) of the Regulations liability for the whole of the equal pay arrears accrued prior to the insolvency did not transfer to a transferee or merely the amount payable by the Secretary of State, which was limited to eight weeks’ arrears. The employment judge concluded that the equal pay arrears were not a debt payable at the time of the employer’s insolvency, when the equal pay claims had not been determined and quantified, and, therefore, the Secretary of State was not obliged to pay in accordance with section 182 of the 1996 Act. Alternatively he held that, if they did fall within section 182, any liability in excess of the eight-week sum guaranteed by the statutory scheme did transfer to the transferee. The transferee appealed. The Secretary of State, as an interested party, contended that a claim for equal pay was not a claim for “arrears of pay” within section 184(1)(a) of the Employment Rights Act 1996 and, therefore, not a “debt” for which the Secretary of State was responsible under section 182. The Employment Appeal Tribunal allowed the appeal in part, holding that on the arrears of pay issue (i) “arrears of pay” in section 184(1)(a) of the Employment Rights Act 1996 meant remuneration for work that had been performed by the employee; (ii) the claimants’ equal pay claims were for remuneration for work actually done by the claimants, but for which they had not been paid, in respect of periods that pre-dated the transferor’s insolvency; (iii) there was no distinction between arrears of pay claimed as a result of a failure to pay sums due expressly under a contract and sums claimed for work done under an equality clause implied by statute; (iv) the claimants’ entitlement to arrears of pay under the equality clause occurred automatically once the conditions identified in section 1(2) of the Equal Pay Act 1970 were met, and, on the assumption that the claimants had established, or would establish, those conditions, they were to be treated as having had an entitlement to be paid the difference in pay that accrued on each pay-day; and (v) such arrears, limited by section 184(1)(a) to eight weeks, constituted a “debt” payable by the Secretary of State under section 182. (2) On the debt claim, the transfer to a transferee of liabilities in connection with an employee’s contract of employment under regulation 4(2) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 was disapplied by regulation 8(5) only in respect of “sums payable” to the employee under the statutory schemes, and regulation 4(2) continued to operate in respect of sums not so payable. Therefore, while liability for the sums payable by the Secretary of State under the guarantee scheme did not transfer to the transferee by virtue of regulation 8(5), liability for sums exceeding the guaranteed eight weeks did transfer to the transferee under regulation 4.

On the transferee’s appeal —