The Court of Appeal upheld the decision of Colin Edelman QC, sitting as a Deputy Judge of the QDB not to strike out equal pay claims brought by former Council employees in the High Court notwithstanding the fact that the claimants were out of time for bringing such claims in the Employment Tribunals.
The decision of the Court of Appeal in Birmingham City Council v. Abdulla was handed down on 29 November 2011. The claimants, all of whom had left the Council's employment more than 6 months before the issue of proceedings and were accordingly out of time for bringing equal pay claims in the Employment Tribunal, made contract claims in respect of equal pay in the High Court.
The Council applied to strike out the claims on the basis that the Court should decline to exercise its jurisdiction to hear claims presented to the civil courts after the 6 month time limit for presenting claims to the Employment Tribunal had expired.
The High Court Judge decided that the effect of s2(1) of the Equal Pay Act 1970 was to confer an option to pursue a contract claim based on an equality clause in the Employment Tribunal rather than a requirement, and that the true purpose of s2(3) (now reproduced in section 122 of the Equality Act 2010) was to enable a court to consider, in circumstances where a claimant has made the choice to pursue a claim in the civil court, whether it would be more convenient for the claim to be disposed of in the Employment Tribunal. However, this must contemplate disposal by a determination on the merits of the particular case. As the claims were out of time in the Employment Tribunal this would not be possible and therefore, it could not be said that disposal would be more convenient in that forum. On appeal, the Council argued that the proper approach to the issue was that of Mrs Justice Slade in Ashby v. Birmingham CC  IRLR 473 in which the learned Judge held at  that “Claimants cannot rely on letting the limitation period for claims to an Employment Tribunal go by in order to ensure that their equal pay claims are heard in the courts. It cannot be said that because such claims to an Employment Tribunal would be out of time a judge could not decide that it would be more convenient for them to be disposed of in the Employment Tribunal and to strike out the claims in the County Court or High Court. In my judgment applying the approach of Lord Goff in Spiliada practical justice would require the reason for not commencing Employment Tribunal proceedings to be taken into account ….” The Court rejected this approach and found that the Judge had not made an error of law. It recognised that there is a power to strike out claims brought in the civil courts under s 2(3) of the Equal Pay Act but suggested that it was a discretion to be used for the convenient allocation of judicial business such as when mixed claims are brought. The discretion should not be used to stifle claims that had been made in time in the common law courts and it would be an extreme exercise of judicial discretion to strike out a claim for breach of an equality clause brought within the limitation period applicable to the civil courts. The discretion should only be used in exceptional cases involving, for example, abuse of process.
It was held that that the analogy that had been drawn with the principle of forum non conveniens in the Ashby was not helpful. Save in exceptional cases amounting to an abuse of process, it is not for claimants to have to explain why they did not go to the Tribunal in time as Parliament has given them an option as to whether to commence proceedings in the civil courts or the Tribunal.
Louise Chudleigh, led by Paul Epstein QC, represented the appellant.