Abdulla and ors v Birmingham City Council

Under the Equal Pay Act (EqPA), courts have the power to direct an equal pay claim to an employment tribunal if it considers that it could be disposed of “more conveniently” there. In Abdulla and ors v Birmingham City Council, the High Court ruled that, when exercising its discretion and deciding the merits of the case, it was unlikely to be more “convenient” if the case would be struck out for being out of time.

Basic facts

In June 2010, 174 claimants brought equal pay claims in the High Court, arguing that the Council had breached their contracts by paying them less than their predominantly male comparators.

All the claimants had stopped working for the Council at various times between August 2004 and November 2008.

Relying on section 2(3) of the EqPA, the Council applied to the court to strike out the claims, arguing that it either had no jurisdiction or should not exercise its jurisdiction to hear them as they could be disposed of “more conveniently” in a tribunal.

Relevant law

Section 2(3) of the Act states that where it appears to the court that an equal pay claim “in respect of the operation of an equality clause” could be disposed of “more conveniently” by an employment tribunal, the court can direct it to a tribunal to be heard there instead.

Section 2(4) states that a tribunal cannot hear a complaint unless the proceedings were started before the qualifying date which is six months after the last day on which the claimant was employed.

The limitation date for a breach of contract claim, by contrast, is six years from the last day that any inequality in pay occurred.

High Court decision

Noting that Parliament had not specified that all equality clause claims had to be dealt with by tribunals, the High Court said that it must therefore be “open to a claimant not to pursue that option and instead to commence Court proceedings”.

Given that context, it said that if a claimant had decided to bring a claim in a civil court, for whatever reason, the court then had to decide whether or not it would be more “convenient” for the claim to be disposed of by a tribunal. As this would include deciding the merits of the particular case, it was unlikely to be more “convenient” if the case would be struck out for being out of time.

Nor was there any obligation on courts to strike out a claim under section 2(3). If Parliament had intended the time limit under section 2(3) to be the “effective time limit”, the judge reasoned that it would have imposed an obligation on the Court to strike out the claim rather than conferring a “completely unfettered discretion” on it.

The Court acknowledged that although its decision could lead to “forum shopping”, with claimants waiting for the six-month limit to expire before starting proceedings, it said that courts had ample powers to prevent abuse, for instance by imposing costs.

Comment

This decision does not mean that a claim in the civil courts is a better option than the tribunal, except where a claim is already out of time. Cases that rely on equal value comparisons could be more expensive in the civil courts where there is no provision for free expert reports as in the tribunal. The costs regime is different in the civil courts. So whilst bringing claims in the civil courts is an option, careful consideration must be given as to whether it is the best venue. Don't forget that you cannot bring the same claim in both the tribunal and the civil courts without risk of costs.