The Supreme Court will tomorrow hear the case of Birmingham City Council v Abdulla and others.  The five-judge panel comprising Lady Hale and Lords Wilson, Sumption, Reed and Carnwath will then determine whether equal pay claims can be brought in the ordinary courts as well as, or instead of, in the Employment Tribunal (where the time limit for bringing the claim in the Employment Tribunal has expired).  Given the age of underlying legislation (the Equal Pay Act is now over 40 years old) it is somewhat surprising that this point has not been addressed before.  However, the implications for claimants and respondents of the alternative forum, and the extended limitation period, could be significant.

The Equal Pay Act 1970

The Equal Pay Act 1970 provides that men and women should receive equal pay for equal work through the mechanism of an “equality clause” implied into each contract of employment.  Where pay for the same work is not equal, and the reasons for this are connected to sex, a claimant will be entitled to bring a claim for breach of contract in respect of the equality clause.

As this is a contractual claim, the 1970 Act had to expressly provide that claims may be brought in the Employment Tribunal, as at the time that the 1970 Act was introduced, tribunals did not have jurisdiction over breach of contract claims.  The 1970 Act also provides that equal pay claims brought in the ordinary courts may be struck out where they “could more conveniently be disposed of separately by an employment tribunal“.  Under the 1970 Act there is a time limit of six months for bringing an equal pay claim in the Employment Tribunal and, unlike other tribunal claims, there is no discretion to extend, save in certain cases such as where the claimant has a disability or where there has been concealment of the differences in pay (neither of which applies in Abdulla).

The claim

Following a finding in favour of a large number of claimants in an equal pay dispute in the Employment Tribunal (Barker v Birmingham City Council) two separate equal pay claims were issued against Birmingham City Council in the ordinary courts – Ashby and 13 others in the county court in March 2009 and Abdulla and 174 others in the High Court in July 2010.  In each case, the claimants were unable to commence proceedings in the Employment Tribunal due to the strict time limits applicable in that forum.  The Council sought to have both claims struck out in the ordinary courts, arguing that they could be more conveniently disposed of by the Employment Tribunal, which in effect would see them struck out in that forum as they were out of time.

The Council was successful at first instance in the Ashby claim, but since then have been unsuccessful on appeal to the High Court.  In Abdulla, the Council was unsuccessful at first instance and on appeal with the High Court and Court of Appeal refusing to strike out the claims.  Abdulla has been appealed to the Supreme Court.

The issues

The main issue before the courts in these two cases was the same: whether the court should exercise its discretion to strike out the claims as they could be more conveniently disposed of by the Employment Tribunal.  Key to this would be whether a mandatory dismissal of the claims for being out of time fell within the notion of “convenient disposal”.

The Court of Appeal started from the position that the ordinary courts and the Employment Tribunal had concurrent jurisdiction and that ultimately, claimants were entitled under the 1970 Act to make a choice as to the forum in which they brought their claims.  The Court of Appeal disagreed with the Council that it would be more convenient for the claims to be dealt with by the Employment Tribunal, noting that the discretion to strike out in these circumstances was for the purposes of distributing judicial business and was not the same as the strike out power the courts otherwise enjoy, such as in cases of abuse of process.

The Court of Appeal also found that it was highly significant that to strike the claims out would effectively deny the claimants a remedy in proceedings which had been brought in time in the ordinary courts.  To do so in these circumstances would suggest that the claimants do not have the choice of forum suggested under the 1970 Act, which appears contrary to the intentions of Parliament.  In Abdulla, The Court of Appeal interestingly took a different approach to the High Court in Ashby finding that the reasons the claims had not been presented in time in the Employment Tribunal would make little difference to the determination of the exercise of the discretion to strike out or not, unless it was alleged that there was an abuse of process (which was not the case in Abdulla), and in doing so expressly rejected arguments based on the principle of forum non conveniens.

As the Court of Appeal did not uphold the appeal in Abdulla, it was not required to consider the claimants’ arguments based on the principle of equivalence, under which domestic legislation giving effect to EU rights must be no less favourable than those governing domestic rights.  Whether the Supreme Court will need to address this point, or the other arguments made by the claimants, in particular that s 2(3) of the 1970 Act precludes the striking out of claims in these circumstances, remains to be seen.

Although the 1970 Act has now been replaced by the Equality Act 2010, the relevant clauses have the same effect and, accordingly, the decision of the Supreme Court will apply to claims brought under the new legislation.  A finding in favour of the claimants could give rise to a number of equal pay claims being brought in the ordinary courts in the future.