Equal pay claims in the Civil Courts

Andrew Short QC and Naomi Ling have successfully argued before the Supreme Court that employees are entitled to bring claims for equal pay in the civil courts. In Birmingham City Council v Abdulla 174 former Council employees, represented by Leigh Day & Co, issued claims for breach of contract in the High Court. They did so on the basis that the Council had paid them less than predominantly male groups of staff, in breach of the Equal Pay Act 1970. In a judgment handed down on 24th October the Supreme Court ruled that they were entitled to do so.

The Council applied to strike out the Claimants’ claims for equal pay on the basis that it was more ‘convenient’ to hear the cases in the Employment Tribunal, even though any claims struck out could not be recommenced in the tribunal because more than six months had elapsed since the termination of the Claimants’ employment, so that they were out of time. The application failed before the High Court in December 2010. Birmingham’s appeal to the Court of Appeal was dismissed in November 2011, Mummery LJ noting that it would be an extreme exercise of judicial discretion to strike out a claim that had been brought within the limitation period applicable to the civil courts.

The Supreme Court divided 3:2 in favour of dismissing the Council’s further appeal. Lord Sumption, in a dissenting speech with which Lord Carnwath agreed, was of the view that the policy behind the limitation provision applying to proceedings in the tribunal was to confer a degree of protection on the employer. In determining what was ‘convenient’, a consideration of the broader interests of justice, including the policy of the legislation, should be decisive.

However, Lord Wilson, in a speech with which Lady Hale and Lord Reid agreed, concluded that it could not be more convenient for a claim to be disposed of in a forum in which, at the outset, and without reference to its merits, it would be required to be dismissed. He gave a close analysis of the history and detailed wording of the provision and said that in reality, the effect of the Council’s submissions would be to re-write the relevant provision, effectively shortening the period of limitation for contractual claims in court. The Claimants’ claims will therefore proceed.

To read the judgment click here.

News 23 Oct, 2012