When lodging a tribunal claim involving multiple claimants, the Court of Appeal has held in the conjoined appeals of Brierley and ors v Asda Stores Ltd; Ahmed and ors v Sainsbury’s Supermarkets Ltd; Fenton and ors v Asda Stores Ltd that it is an “irregularity" for two or more claimants to submit a single claim form if their claims are based on a different set of facts although tribunals can override the irregularity, allowing the claim to continue.
The appeals in this case related to claims brought largely by female retail staff working in different jobs in supermarkets who claimed they were performing equal work with men working in warehouses or distribution centres in the same supermarket chain, but were being paid less than the man.
However, women doing different jobs included their claims on the same claim forms. This made financial sense at the time as the fee for issuing a claim form containing multiple claims was much lower than the fees for an individual claim form. The employers, however, invoked Rule 9 (see below), arguing that claimants doing different jobs could not include their claims on one claim form, as they were not based on the same set of facts.
Rule 9 of the Employment Tribunal Rules of Procedure contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 states that two or more claimants "may make their claims on the same claim form if their claims are based on the same set of facts". However, tribunals have a discretion under Rule 6 to waive any irregularities.
Decisions of tribunal and EAT
The tribunal judge in Brierley v Asda Stores concluded that including different claims on one claim form was “irregular” but waived the irregularity; the judge in Fenton v Asda Stores refused to waive the irregularity and struck the claims out; while the judge in Ahmed v Sainsburys Supermarkets Ltd held there was no irregularity and allowed the claims to proceed.
The EAT allowed the employers’ appeal upholding the decision in Fenton and reversing the tribunal decisions in Brierley and Ahmed.
Decision of Court of Appeal
The Court of Appeal held that claimants can only include their claims within one claim form if they are based on the same set of facts. As the female claimants in these cases were doing different jobs, their claims were not based on the same set of facts as they were comparing different work with male comparators.
In Brierley v Asda the Court of Appeal upheld the tribunal decision on waiving the irregularity. It said that if it were to strike out the claims, any claimants still employed by Asda could issue fresh claims and the parties would effectively be back to square one. This would, however, result in significant delay for the claimants who would also have to bear the additional cost of any further issue fees. In addition some of the claims might now be out of time. Although that meant the claimants would benefit from a significant reduction in the fees payable, the Court held that there was no evidence that this had been a cynical ploy on their part. Conversely, the employer would not suffer any prejudice by allowing the claims to proceed.
It remitted the claims in Ahmed to the tribunal on the basis that it was wrong to reject the employer’s argument that the claims were irregularly presented and that it should now consider whether to exercise their discretion to waive the irregularity.
Finally, it rejected the claims in Fenton on the basis that it could not interfere with the tribunal’s finding that the multiple claim was irregularly presented and its decision not to waive the irregularity. It was a decision the tribunal was entitled to make because the claims were made after the Employment Appeal Tribunal decision in Brierley.
The interpretation of the change of wording about multiple claims took everyone by surprise. Now the position is clear. Claims based on different facts have to be on a separate case form. It is dangerous to rely on the discretion to waive the irregularity because by then it may be too late to correct the position. This reduces the economies of scale to be achieved from multiple claims and increases the burden on the Employment Tribunal Service and ACAS. It increases the cost for both sides. Sensible parties will agree in advance about this. In equal pay cases in particular only women doing the same job can make a claim on the same claim form.