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Ashby and ors v. Birmingham City Council


Queen’s Bench Division

The appellant employees (E) appealed against a county court decision striking out their equal pay claims against the respondent local authority.

E were women, former home carers or home helpers, who were employed by the local authority until dates between July 2003 and January 2006. They claimed that the statutory equality clause implied by the Equal Pay Act 1970 s.2 operated to vary their contracts to give them an entitlement to bonuses and higher rates of basic pay paid to male comparators whom they alleged were employed on work rated as equivalent or of equal value to theirs. They claimed damages for breach of contract for the shortfall between their pay and that of their comparators for the period of six years up to the termination of their employment. Their evidence was that they were unaware of the alleged disparity in pay structures between men and women until 2008 by which time it would have been too late to bring proceedings in the employment tribunal. Thus they brought proceedings in the county court. The local authority applied to strike out the claims and the county court judge held that the claims "could more conveniently be disposed of separately by an employment tribunal" within s.2(3) and struck them out.

E submitted that, in deciding whether it was more convenient for a claim to be disposed of in the employment tribunal, regard should be had to the particular claim and it could not be more convenient for a claim to be heard in the employment tribunal if all that the tribunal could do would be to say that it could not hear it.

HELD: (1) The juridical basis for the right of a claimant to equal pay pursuant to the 1970 Act was contractual, Levez v TH Jennings (Harlow Pools) Ltd (No.2) [1999] 3 C.M.L.R. 715 and Sodexo Ltd v Gutridge [2009] I.C.R. 70 considered. Claims for equal pay could be brought in the ordinary courts or in the employment tribunal. The general contractual jurisdiction of the High Court and the county court was not excluded (see paras 48-49 of judgment). (2) The power conferred on a court by the second part of s.2(3) to refer to an employment tribunal a question as to the operation of an equality clause suggested that proceedings including such claims were suitable for determination in the courts, Abdulla v Birmingham City Council [2010] EWHC 3303 (QB), [2011] I.R.L.R. 309 considered. Complex as well as straightforward issues could be referred for determination by an employment tribunal. If equal pay cases were to be struck out in the courts because they raised complex issues that would result in the shorter limitation period in employment tribunal claims applying to complex claims and the more generous six-year limitation period applying to straightforward cases (para.53). (3) A court considering whether to strike out an equal pay claim or counterclaim under s.2(3) engaged in a two-stage process. First it would decide whether the claim could more conveniently be disposed of separately by an employment tribunal. If the court concluded that the claim could be more conveniently disposed of separately by an employment tribunal it would decide whether to exercise its discretion to strike out the claim (para.55). (4) The county court judge's decision was based on the conclusion that in general, equal pay claims were more conveniently dealt with in employment tribunals. Section 2(3) required a consideration of the convenience of disposal of the particular cases before the court. The judge wrongly failed to consider which issues in the proceedings before him were likely to be contentious and in which forum those would be best resolved (paras 63-65). (5) The inability of E to commence proceedings before an employment tribunal could be a factor affecting the convenience of the tribunal as a forum or affecting the judge's discretionary decision to strike out such claims in the county court, but was not determinative. The reasons why proceedings had not been issued in the employment tribunal in time would be relevant to the decision under s.2(3). The judge had erred in failing to make findings as to the reasons why E did not issue timely proceedings in the employment tribunal and whether they acted reasonably in failing to do so (paras 71-77). (6) The principles formulated in relation to forum non conveniens provided useful guidance to the proper construction and application of s.2(3), Spiliada Maritime Corp v Cansulex Ltd (The Spiliada) [1987] A.C. 460 applied. The court should consider whether the claim would be tried more suitably in the employment tribunal in the interests of the parties and the ends of justice. Applying that approach, practical justice would require the reason for not commencing employment tribunal proceedings to be taken into account. If not presenting such proceedings was reasonable, the interests of justice were likely to be served by enabling E to continue litigating in a forum which had jurisdiction to hear their claims. The decision to strike out E's claims under s.2(3) was set aside (paras 56-61, 66, 78, 81).

Appeal allowed.

[2011] EWHC 424 (QB)

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