Labour & European Law Review Weekly Issue 253 26 January 2012
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 Court of Appeal ruled that the objective of the rule was to resolve judicial business in the “forum more fitted for it”, not to stifle claims that had been made in time.
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, and so were out of time for bringing a claim under the EqPA.
Relying on section 2(3) of the Act, 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.
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 is six years from the last day that any inequality in pay occurred.
High Court decision
The High Court said that, as Parliament had not specified that all equality clause claims had to be dealt with by Tribunals, it must therefore be “open to a claimant not to pursue that option and instead to commence Court proceedings”.
If they exercised that right, 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 case, it was unlikely to be more “convenient” if it was 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 six months to be the “effective time limit”, it would have imposed an obligation on the Court to strike out the claim rather than conferring a “completely unfettered discretion” on it.
Court of Appeal decision
The Court of Appeal upheld the decision of the High Court, saying that the statutory objective of section 2(3) was to resolve judicial business in the “forum more fitted for it”, not to stifle claims that had been made in time.
If the Council was right, the option of bringing claims either in the ordinary courts or in the Tribunal would be meaningless. It did not think that Parliament, having given claimants a choice, intended the courts to exercise their discretion so that they were denied the possibility of their case being decided in either jurisdiction.
When deciding whether to exercise their discretion, the expiry of the limitation period for presenting a claim would carry considerable weight as otherwise the claim would be struck out.
Although there might be circumstances when courts would take into account the reason for not presenting an equal pay complaint to the Tribunal in time when exercising their section 2(3) discretion, these would be exceptional (such as abuse of process). In general, however, it was not for claimants to explain why they had not taken their case to Tribunal.
This decision confirms that individuals can bring equal pay claims in either the Tribunal or as breach of contract claims in the High Court or County Court (Sheriff Court in Scotland). In most cases, though, it still makes sense to get the claim into a Tribunal within six months of the end of a contract (or series of contracts for the same job) to get the dispute resolved as soon as possible after it arises. Tribunals can appoint independent experts if there is a dispute about the value of the jobs, and they also include lay members with relevant experience and expertise. You also need to take into account your union legal services arrangements.