“Out of time” equal pay claims can proceed in the High Court

Can claims for equal pay, which would have been out of time if heard by an employment tribunal, still proceed as breach of contract claims in the High Court?

Yes, held the Court of Appeal in the recent case of Abdulla and ors v Birmingham City Council, in a decision that will give a new right of redress to hundreds of equal pay claimants whose claims sit outside the Employment Tribunal limitation period.

Birmingham City Council applied to strike out 174 equal pay claims in the High Court. It argued that they could be ‘more conveniently disposed of’ by an employment tribunal, as permitted by the Equal Pay Act 1970 (now the Equality Act 2010). It requested the Court exercise its discretion and automatically refer the claim to a tribunal. This is in spite of the six-month time limit for bringing the claim in the tribunal having elapsed.

The High Court rejected the Council’s application. Whilst it acknowledged that a court had to decide whether an equal pay claim might be more conveniently dealt with by a tribunal, it was of the view that it would be inconsistent with the language of the legislation to regard a claim as more conveniently dealt with by a tribunal if it would be struck out in the tribunal for being out of time. It also considered this was not in the interests of justice. On appeal, the Council argued that the Court should have taken into account the reasons why the claimants failed to present their complaints to the tribunal in time.

Rejecting the Council’s appeal, the Court of Appeal reasoned that the expiry of the tribunal time limit should carry considerable weight in most circumstances when courts were considering exercising their discretion. Were the Court to exercise its discretion in this way, claims would not be ‘more conveniently’ disposed of in a tribunal – they would not be heard at all. Consequently, there would be little real meaning in allowing claimants to bring claims in the ordinary courts rather than the tribunal.

The Court added that it considered the discretion to strike-out pay claims was mainly aimed at ‘mixed claims’ that involved other breaches of contract. In these types of cases, it could be more convenient for the equal pay element to be dealt with by a tribunal. Only in exceptional cases would the reasons why a tribunal claim was not presented in time be relevant to the Court’s discretion, such as where allowing the claim to proceed in the ordinary courts would be an abuse of process.

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