As Harvey points out in Division K, there have been inconsistent decisions over the last year on whether equal pay claims can be brought in an ordinary court, the obvious point being that in a tribunal a claimant must claim within six months of leaving the employment whereas in a court action the limitation period would be six years.
In Ashby v Birmingham CC Slade J held that as a general rule the tribunal is the proper forum and that a claim in a court should normally be struck out under the Equal Pay Act 1970 s 2(3) (claim could more conveniently be disposed of separately in an employment tribunal). Conversely, in the Court of Appeal in Abdulla v Birmingham it was held that the deputy high court judge had been right not to strike out the claims, which were all outside the tribunal’s six months but within the court’s six years. This latter decision has now been upheld by the Supreme Court by a majority of 3-2 (Birmingham CC v Abdulla All ER(D) 229 (Oct)).
The majority judgment by Lord Wilson culminated in the view that “a claim in respect of the operation of an equality clause can never more conveniently be disposed of by the tribunal if it would there be time-barred”. In so holding, Lord Wilson not only preferred the decision in this case to that in Ashby, but also preferred the view of the deputy high court judge to that of the Court of Appeal – the latter had accepted that the reasons for the failure to claim in time in a tribunal might be relevant under s 2(3), whereas the judge’s more robust view was not so qualified. The minority judgment by Lord Sumption would have followed in general the Ashby line and restricted s 2(3) and the power to transfer cases to the tribunal to cases where the subject matter dictated the question of convenience, with the fact of time-barring in the tribunal not normally being a deciding factor. In so holding, the key question was Parliament’s intent which was seen as providing tribunals as the proper forum (and also imposing a relatively short time limit to discourage old claims).
Three particular comments are ventured on this newsworthy decision:
1) The majority recognised that there could be issues of the improper use of the court alternative, but thought that the ordinary rules on abuse of process could deal with them. In addition, they said that if a court took the view that a claimant reasonably should have brought her claim in a tribunal in good time, that was a matter that could be taken into account in denying her costs. However, the possible problem with this dictum is that it looks inconsistent with the majority’s uncompromising view of the substance of the matter (ie an unrestricted right to use court proceedings) and indeed bears more resemblance to the minority’s view as to the proper forum for an equal pay case.
2) Although it did not arise on the facts of this case, there is one open-ended question arising from approval of a court forum – it could be difficult enough for a non-specialist body to deal with the complexities of even a straightforward equal pay case, but what about an equal value claim? Here, Parliament has provided the “independent expert” procedure for use by a tribunal, but which would presumably be unavailable to a court.
3) This decision of the Supreme Court was widely reported in the press, as showing a major extension of equal pay entitlement. Obviously it is of great importance in cases such as this where claimants wish to claim against their old employer some time after the expiry of six months from a change in employment. However, as far as the quantum of a potential late claim is concerned, it must also be recalled that the six year period comes in twice – it may allow a late claim against an old employer, but it also sets the maximum period for back pay at a maximum of six years from the (eventual) date of claim (ss 2(5)(a) and 2ZB). Thus, the later the claim, the less of that six years will still have been in the service of the old employer and subject to the monetary claim. The emphasis in practice, therefore, must remain on a claim in good time in order to maximise the amount recoverable and in general it will still be preferable to bring that claim in a tribunal, within six months of a termination of employment