Equal pay claims in the Civil Courts

[Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett. Thanks also to Neil Addison of Palmyra Chambers for preparing this case summary]

Can an employee bring an equal pay claim in the civil courts rather than the employment tribunal, even if that means them circumventing the time limit for bringing tribunal proceedings?

Yes, says the Supreme Court in Birmingham City Council v Abdulla.

A large group of female workers had claims against Birmingham City Council for breach of the provisions of the Equal Pay Act 1970 (now part of the Equality Act 2010). Normally such claims would be brought in the employment tribunal, but the time limit for bringing claims before the tribunal is six months after the employment has finished and these employees were all over the time limit. They therefore brought their claims in the High Court in order to take advantage of the normal civil court time limit of six years.

Birmingham sought to have the claims struck out under section 2(3) of the Equal Pay Act, which allows cases to be struck out where the court considers that the claims "could more conveniently be disposed of separately by an employment tribunal". This would have had the effect of ending the claims, which were out of time for a tribunal.

Lord Wilson, with Lady Hale and Lord Reed, decided that since the effect of striking the cases out would mean that the claims died then it could not be said that the claims could be "more conveniently disposed of" in a tribunal. Parliament had allowed these claims to be brought in the civil courts as well as in the tribunal and so must have accepted that the normal six year time limit could apply to them. Lord Sumption and Lord Carnwath dissented, on the basis that such an approach would frustrate the policy underlying the limitation provisions of the Equal Pay Act.

The majority went on to suggest that Parliament should consider relaxing the strict six month limitation period for employment tribunal equal pay claims, and warned that (1) Claimants who were found to have deliberately delayed bringing tribunal proceedings in order to gain an "illegitimate advantage" by bringing court proceedings risked having their claims struck out under the general rules on abuse of process, and (2) if a court decided that an individual should reasonably have presented a claim in time to the employment tribunal, this was something it could take into account in awarding costs.