[Thanks to Alfred Weiss of Zenith Chambers for preparing this case summary]
The High Court (Slade J) has handed down its decision in Ashby & ors v Birmingham CC, which is authority for the proposition that section 2(3) Equal Pay Act 1970 does not prevent equal pay claims from being heard in the civil courts, even when they are out of time in the employment tribunal.
Section 2(3) provides: "Where it appears to the court in which any proceedings are pending that a claim or counterclaim in respect of the operation of an equality clause could more conveniently be disposed of separately by an employment tribunal, the court may direct that the claim or counterclaim shall be struck out".
This is a two stage test. The court must decide whether the claim could more conveniently be disposed of separately by an employment tribunal. If the answer is yes, the court will decide whether to exercise its discretion to strike out. Just because an equal pay claim would be time barred if brought in the tribunal does not prevent a judge from deciding it would be more convenient to dispose of the claim in the tribunal. Practical justice requires the reason for not commencing the claim in the tribunal to be taken into account under section 2(3). If it was reasonable not to present the equal pay claim in the tribunal, the interests of justice would likely be served by permitting the claim to be litigated in the ordinary courts.