Labour & European Law Review Weekly Issue 481 03 August 2016
Although tribunals have the power to stay proceedings indefinitely, the Court of Appeal held in Asda Stores Ltd v Brierley and ors that they could not strike out claims and transfer them to the High Court just because it might be the more appropriate forum.
Over 7,000 mainly women claimants who work in Asda’s retail stores lodged tribunal claims for equal pay with comparators (overwhelmingly men) employed in the company’s distribution depots.
Before the tribunal had the opportunity to decide on the merits of the claims, Asda applied for them to be transferred to the High Court. It argued that, although the tribunal did not have the power to transfer the claims, it did have the power to stay the proceedings indefinitely. If it exercised that power, the claimants would have no choice but to go to the High Court if they wanted to pursue their claims
Tribunal and EAT decisions
The tribunal concluded that it had no power to impose a stay and that even if it did, it would not be appropriate to exercise it in this case. Asda appealed to the EAT which also decided that there was no arguable case.
Submissions by Asda
Asda appealed again, arguing that although tribunals have considerable experience in dealing with large scale equal pay cases in the public sector, this was of limited relevance when dealing with the complexity of these claims. Given the very complex points of both EU and domestic law which would need to be resolved, a High Court judge would be more suited to decide them than an employment judge.
For their part, the claimants argued that although their claims were complex, it was not that different from the high value public sector claims in the health and local authority sectors which tribunals had dealt with perfectly adequately. Tribunals frequently have to determine difficult points of law and are very used to determining issues of comparability, material factor defenses and remedies.
Decision of Court of Appeal
The Court of Appeal rejected the appeal. While accepting that tribunals have the power to stay proceedings indefinitely, they could not strike out claims just because the High Court might be a more appropriate forum. The claimants had a statutory right to proceed in tribunal and it would not be lawful to stay proceedings in order to impose a transfer of jurisdiction.
Apart from anything else, it would be prejudicial to the employees to have to start proceedings again, with the additional stress, including the additional court fees that it would involve. In addition, there was a risk that a claim initially in time would now be out of time. In addition, as arrears of pay are limited to pay accruing in the six years before proceedings are commenced, the clock would have to start again but from a later date. That was particularly relevant where, as is alleged to be the position here, the inequality has been operating for more than six years. In addition the claimants might have to pay costs if they lost in the High Court, whereas costs are rarely awarded in a tribunal.
The employment tribunal judge had given cogent reasons for reaching the decision that he had and his conclusion could not conceivably be said to be perverse. Very few High Court judges had experience in the field of equal pay claims whereas a number of highly able tribunal judges had in terms of dealing with difficult cases and bringing highly specialist knowledge to the points of law which could arise. The assumption they were not up to the task was unwarranted and underestimated the quality of tribunal judges.
Claimants can choose whether to start their claims in the court system or in the Employment Tribunal. Section 128 Equality Act 2010 says a court can transfer an equal pay claim to the employment tribunal if the court thinks that would be better. The tribunal cannot transfer an equal pay claim to the County Court or the High Court. So the decision of the Court of Appeal hardly comes as a surprise. Perhaps the many barristers and employers’ lawyers take the view that equal pay claims would be better managed in the High Court because that would, in practice, take away all low paid women’s rights to equal pay.