The appellant local authority appealed against a decision ([2011] EWCA Civ 1412, [2012] 2 All E.R. 591) upholding the dismissal of its application for a direction that the equal-pay claims of the respondents (E) should be struck out.

 

E had brought their claims in the High Court. The claims were founded on an alleged breach of the "equality clause" which, by the Equal Pay Act 1970 s.1(1), as substituted by the Sex Discrimination Act 1975 s.8(1), was deemed to have been included in their contracts of employment. They issued their claims outside the time limit that would have applied had their claims been presented in the employment tribunal. The issue was the proper construction of s.2(3) of the 1970 Act, the first part of which provided that where it appeared to the court in which any proceedings were pending that a claim or counterclaim in respect of the operation of an equality clause could more conveniently be disposed of separately by an employment tribunal, it could direct that the claim or counterclaim should be struck out.

 

The local authority argued that, except where they could provide a reasonable explanation for their failure to present their claims in time to the tribunal, E's claims should be struck out under s.2(3).

 

HELD: (Lords Sumption and Carnwath dissenting) (1) The adverb used in s.2(3) was "conveniently". That adverb qualified the type of disposal addressed in the subsection and mandated a straightforward practical inquiry into the forum more convenient for investigation of the merits. For the purpose both of the first part of the subsection and of its successor, namely the Equality Act 2010 s.128(1), a claim in respect of the operation of an equality clause could never more conveniently be disposed of by the tribunal if it would there be time-barred, Restick v Crickmore [1994] 1 W.L.R. 420 approved (see paras 27-29 of judgment). (2) No doubt one aspect of the local authority's concern about the prospect that claims in respect of the operation of an equality clause could be brought against employers in court, rather than in the tribunal, related to the court's general rule, which did not apply in the tribunal, to make an order for costs against the unsuccessful party. But the court could make a different order and, in deciding what order (if any) to make in respect of costs, it had to have regard to all the circumstances, including the conduct of the parties. It was to that inquiry that the factor incorrectly urged as relevant to this appeal might well become relevant. The court's conclusion that, instead of bringing it in court, a claimant should, in all the circumstances, reasonably have presented her claim, in time, to the tribunal might well be relevant to its survey in relation to costs: insofar as, had she done so, she would not have obtained an order for costs, such might well be relevant to the court's decision as to the appropriate order (para.30). (3) E had invoked the principle of equivalence. However, the decision in Preston v Wolverhampton Healthcare NHS Trust (No.2) [2001] UKHL 5, [2001] 2 A.C. 455, which some might now consider borderline but from which the court had not been invited to depart, was authority for the proposition that, in its application to what after 2003 was known as the standard case, the six-month rule in s.2(4) of the 1970 Act did not offend against the principle of equivalence, Preston considered (paras 33-34). (4) (Per Lord Sumption) According to the majority, the notion of "convenience" in s.2(3) was directed only to the efficient distribution of judicial business between the available forums. That was far too narrow a test, because it excluded the broader interests of justice, which should be decisive. "Convenient" was used in s.2(3) in a sense analogous to that which it had in the expression "forum non conveniens". The question was whether the disposal of the claim in an employment tribunal was appropriate in the interests of justice. The fact that the claim would be time-barred in the tribunal would be a highly relevant factor, albeit not conclusive (paras 46-47).

 

Appeal dismissed