Birmingham City Council v Abdulla and others [2012] UKSC 47 SC
equal pay claims | jurisdiction of civil courts | strike out
The Supreme Court has held that civil courts should retain their discretion when deciding whether or not to strike out equal pay claims that are time-barred from being heard in the employment tribunal.
Implications for employers
- Civil courts should not strike out equal pay claims that are time-barred from the employment tribunal unless the claimant's reasons for failing to bring the claim in the tribunal amount to an abuse of process.
- This means that employers may see more equal pay claims in which the six-month tribunal time limit has expired appearing in the civil courts, where there is a six-year time limit.
- The Supreme Court highlighted that it is unsatisfactory that equal pay legislation (previously the Equal Pay Act 1970 and now the Equality Act 2010) does not allow employment tribunals discretion to extend the six-month time limit.
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Mrs Abdulla and several hundred other claimants brought equal pay claims against Birmingham City Council. The claimants brought their claims in the civil courts within the six-year limitation period applicable there. However, the six-month time limit that applies for bringing equal pay claims in the employment tribunal had expired.
Birmingham City Council applied to the High Court for the equal pay claims to be struck out (at the court's discretion under s.2(3) of the Equal Pay Act 1970) on the basis that they could "more conveniently be disposed of" by the employment tribunal, with its specialist expertise in determining equal pay claims. The council submitted that it was irrelevant that the six-month time limit applicable in the employment tribunal had expired. Both the High Court and Court of Appeal rejected the council's application.
In the Supreme Court, Birmingham City Council contended that, although the High Court did have concurrent jurisdiction under the Equal Pay Act 1970 to determine the claims, those claims should have been presented to the employment tribunal. It invited the court to rule that, except where the claimants could provide a reasonable explanation for their failure to present their claim in the tribunal, their claims should be struck out. It argued that there would be no purpose in providing a strict time limit for the presentation of claims to the tribunal under the Equal Pay Act 1970, if those who failed to comply with it could have their claims heard elsewhere.
The Supreme Court, by a majority of three to two, dismissed Birmingham City Council's appeal.
Lord Wilson (with whom Lady Hale and Lord Reed agreed) expressed surprise that Parliament had never made the six-month time limit for bringing an equal pay claim in an employment tribunal extendable. For most other types of claim that can be made to an employment tribunal, Parliament prescribes time limits that the tribunal is permitted to extend. In some cases, the tribunal is permitted to extend the time limit when it is just and equitable to do so and, in other cases in which it had not been reasonably practicable for the complaint to be presented in time, to extend the time limit as the tribunal considers reasonable. Lord Wilson said that it is "strongly arguable" that Parliament tolerated an unusually inflexible time limit for the presentation to the tribunal of a claim under the Equal Pay Act 1970 only because it recognised that, were claimants to fall foul of that time limit, they would nevertheless be likely to remain able to make a claim in the civil courts.
Lord Wilson stressed that the "statutory objective" of s.2(3) of the Equal Pay Act 1970 was the "distribution of judicial business for resolution in the forum more fitted for it". In most cases, it will be more convenient for the tribunal to dispose of a claim in respect of the operation of an equality clause, provided that the claim can still be brought there. If the claim can no longer be brought in the tribunal, the effect of Birmingham's submissions in this appeal would be to convert the reasons why the claimant had failed to present her claim in time to the tribunal into the factor determinative of whether or not it should be struck out by the civil court.
Lord Wilson held that the present claims cannot more conveniently be disposed of by the tribunal and that Birmingham's arguments on s.2(3) of the Equal Pay Act 1970 were rightly rejected both by the High Court and Court of Appeal. While the High Court could still strike out a claim in respect of the operation of an equality clause if the claim represents an abuse of its process, the subject of s.2(3) was not abuse of process. In respect of both s.2(3) of the Equal Pay Act 1970 and its successor, s.128(1) of the Equality Act 2010, a claim in respect of the operation of an equality clause can never more conveniently be disposed of by the tribunal if it would be time-barred there.
Lord Wilson concluded that Parliament might wish to consider introducing a relaxation of the usual limitation period for the presentation of a claim to the tribunal in cases in which a claim in respect of the operation of an equality clause has been brought, in time, before the High Court and, were it not for the effect of the usual six-month limitation period, would more conveniently be disposed of by the tribunal.
Lord Sumption (who, along with Lord Carnwath, dissented from the majority judgment) considered that the approach of the majority would frustrate the policy underlying the provisions of the Equal Pay Act 1970 relating to time limits. Section 2(3) empowers a court in which a claim under the equality clause is pending to strike it out if it could "more conveniently be disposed of separately by an employment tribunal". Lord Sumption stated that, although the issue in this case turned on the construction of the provision, it was particularly difficult to resolve by reference to the mere language of the Equal Pay Act 1970. The relevant provisions were "poorly drafted, and a complex history of ill-thought-out amendments has contributed nothing to their coherence". This was a case in which it was more important than usual to examine the underlying purpose of Parliament in:
- conferring jurisdiction on employment tribunals over equal treatment claims; and
- providing for special periods of limitation to apply to such claims in those tribunals.
According to Lord Sumption, there are substantial advantages for both the parties and for the broader interests of justice in having claims heard in employment tribunals. Lord Sumption said that the advantages include that employment tribunals are "cheap, informal, expert tribunals, comprising predominantly lay members and operating under a simplified procedure, in which parties need not be legally represented". While accepting that the fact that the claim will be time-barred in the employment tribunal is a highly relevant factor, he could not accept that it is conclusive when civil courts are deciding whether or not equal pay claims can "more conveniently be disposed of" in the employment tribunal.
Additional resources
Case transcript of Birmingham City Council v Abdulla and others (PDF format, 107K) (on the Supreme Court website)
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