In Birmingham City Council v Abdulla and ors the majority of the Supreme Court has held that equal pay claims, which would have been out of time in an employment tribunal, can proceed as breach of contract claims in the High Court. While the civil courts have a discretion to strike out equal pay claims that it is more ‘convenient’ for a tribunal to hear, such claims can never be more conveniently disposed of by a tribunal where they would be time-barred.
The High Court rejected the Council’s application to strike out 174 equal pay claims on the basis that they could be ‘more conveniently disposed of’ by an employment tribunal, as permitted by S.2(3) of the Equal Pay Act 1970 (re-enacted in the Equality Act 2010 at S.128), after the six-month time limit for bringing the claims in the tribunal had elapsed. The Court held that it would not be consistent with the language of S.2(3) to regard a claim as more conveniently dealt with by a tribunal if it would be struck out for being out of time under S.2(4). The Council appealed, inviting the Court of Appeal to rule that the claims should be struck out unless a claimant could provide a reasonable explanation for her failure to present her claim to the tribunal in time.
The Court of Appeal, rejecting the appeal, noted that S.2(3) provides a judicial discretion to strike out equal pay claims brought in time in the ordinary courts in order to allow cases to be resolved in the most fitting forum. When considering whether to exercise that discretion, the expiry of the tribunal time limit will be a circumstance of considerable weight in most circumstances. However, striking out such claims in the ordinary courts would have the draconian effect of preventing a claim being heard at all, despite being brought in time in a court which has jurisdiction to consider it. For the Court to exercise its discretion in this way would not see the claims ‘more conveniently’ disposed of in a different forum and would give the option of bringing the claims in the ordinary courts little real meaning or effect. The Council again appealed.
The majority of the Supreme Court rejected the appeal. In the majority’s view, Slade J had been wrong in Ashby v Birmingham City Council (Brief 924), which considered the same issue as the instant case, to apply Lord Goff’s conclusion in Spiliada Maritime Corporation v Cansulex Ltd that a stay for forum non conveniens should be granted where there is another more appropriate forum even if the claim would be time-barred in that alternative forum. Lord Goff had considered the broader principle of forum non conveniens in relation to a time bar in an alternative foreign jurisdiction. This was of no assistance in determining whether, where Parliament has specifically allowed a claimant to bring her entirely domestic claim in court, it could more conveniently be disposed of by the tribunal.
The majority noted that S.2(3) requires the court to consider whether equal pay claims could be ‘more conveniently’ dealt with by a tribunal. ‘Conveniently’ in S.2(3) mandates a straightforward practical inquiry into the forum more convenient for investigation of the merits. The reasons for failing to bring a claim in time in the tribunal are irrelevant as to convenience under S.2(3). The majority preferred the approach taken by the High Court over that taken by the Court of Appeal and held that cases such as the instant claims can never be more conveniently disposed of by a tribunal where they would be time-barred.
The majority noted that the second part of S.2(3) and its successor, S.128(2) of the Equality Act 2010, enable the court to refer a question as to the operation of an equality clause to a tribunal even if a presentation of a claim to a tribunal would be time barred. Furthermore, the majority suggested that Parliament may wish to consider relaxing the tribunal time limit in equal pay cases in which a claim has been brought in time before the court and, were it not for the effect of the time limit, would more conveniently be disposed of by the tribunal.
In a dissenting judgment, Lord Sumption and Lord Carnwath gave the opinion that the limitation provisions of the EqPA are an important part of the statutory scheme, which the majority’s judgment would undermine. They concluded that the proper operation of S.2(3) requires a multi-factorial inquiry into not only why the claimant failed to submit his or her claim to the tribunal in time but into all other factors which might bear upon whether, in the interests of justice, a claim should be struck out. In their view, the 174 claims should therefore be remitted for individual consideration.