Weekly Employment Update - 7th December 2011

Wednesday 7th December 2011

Equal pay claims out of time in tribunals can proceed in civil courts

Welcome to Ashfords' Weekly Employment Update, where each week we consider recent developments in Employment and HR issues. This week we consider a recent Court of Appeal decision confirming equal pay claims out of time in tribunals can proceed in civil courts.

The Court of Appeal has upheld the High Court’s decision in Birmingham City Council v Abdulla, to the significant benefit of employees. Equal pay claims out of time in Employment Tribunals can proceed in the civil courts and will be very rarely struck out. Employees therefore have six years, rather than six months, to commence an equal pay claim.

Facts
174 former employees of the Council claimed that the failure to give them pay equal to that of various predominantly male groups of staff comprises a breach of contract enforceable in the civil courts. The employees issued the claims in the High Court as they would have been out of time if they had pursued them through an Employment Tribunal.

The civil courts have discretion to strike out equal pay claims. The question is whether striking out in-time equal pay claims is apt. The Council argued the claims should be struck out as the technical nature of the claims would mean they would require the expertise of a Tribunal, and secondly that the Court was required to take into account the reason the employees failed to present complaints to the Employment Tribunal in time.  

The Decision     
The Court of Appeal held that to strike out claims which were out of time in the Employment Tribunal would leave claimants with no right to pursue the claim. The discretion to strike out can not have been intended for these purposes and therefore it should very rarely be exercised in such circumstances.

In addition it was held that the reason claimants have not pursued the claim in the Employment Tribunal was irrelevant, as claimants have an option as to whether to commence proceedings in the civil courts or the Employment Tribunal. The Court of Appeal did acknowledge that the reason the claimant had not pursued the claim in the Employment Tribunal could be considered in exceptional cases, such as where it would be an abuse of process to allow the claim to be heard in the civil courts.

Comment
The decision has potential to significantly increase the number of equal pay claims. Not only does the decision confirm that employees have six years to commence an equal pay claim, but unless there is an abuse of process employees will undoubtedly have this right. Whether the employee acted reasonably in failing to commence Employment Tribunal proceedings in time is no longer relevant.

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

Birmingham City Council v Abdulla and others [2011] EWCA Civ 1412

Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.