Tuesday 29 November 2011

Equal Pay Claims in the Civil Courts

[Thanks to Saul Margo of Outer Temple Chambers for preparing this case summary]

The Court of Appeal has this morning given judgment in Birmingham City Council v Abdulla, in which 174 former employees of the Council represented by Leigh Day & Co assert that the failure to give them pay equal to that of various predominantly male groups of staff, in accordance with the Equal Pay Act 1970, comprises a breach of contract enforceable in the civil courts.

The Council applied to strike out on the basis that the civil court should decline to exercise its jurisdiction to hear claims presented to the civil courts after the 6 month time limit for presenting claims to the employment tribunal had expired. Colin Edelman QC, sitting as a Deputy Judge of the QDB, had dismissed the Council's application in December 2010. The Court of Appeal has upheld his decision.

Although there is a discretion to strike out claims that could more conveniently be determined in the ET (in section 2(3) of the Equal Pay Act and effectively reproduced in section 122 of the Equality Act 2010), Mummery LJ held that it would be an extreme exercise of judicial discretion to strike out a claim for breach of an equality clause brought within the limitation period applicable to the civil courts. That discretion should be exercised only for the purpose for which it was conferred, namely the distribution of judicial business, and not to stifle claims that had been made in time.

The Court held that the analogy that had been drawn with the principle of forum non conveniens in the Ashby v Birmingham City Council case (judgment in which had been given after Abdulla) was not helpful. Save in exceptional cases amounting to an abuse of process, it is not for claimants to have to explain why they did not go to the ET in time: Parliament had given them an option as to whether to commence proceedings in the civil courts or the ET.

The Council has applied for permission to appeal to the Supreme Court.

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