ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR COLIN EDELMAN QC sitting as a Deputy High Court Judge
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVIS
DAME JANET SMITH
| BIRMINGHAM CITY COUNCIL
|- and -
|HUDA ABDULLA & ORS
MR ANDREW SHORT QC and MS NAOMI LING (instructed by Leigh Day & Co) for the Respondent
Hearing date: 7th October 2011
Crown Copyright ©
Lord Justice Mummery:
"(1) Any claim in respect of the contravention of a term modified or included by way of an equality clause, including a claim for arrears of remuneration or damages in respect of the contravention, may be presented by way of a complaint to an [employment tribunal.]"
"(3) Where it appears to the court in which any proceedings are pending that a claim or counter-claim in respect of the operation of an equality clause could more conveniently be disposed of separately by an employment tribunal, the court may direct that the claim or counter-claim shall be struck out; and (without prejudice to the foregoing) where in proceedings before any court a question arises as to the operation of an equality clause, the court may on the application of any party to the proceedings or otherwise refer that question, or direct it to be referred by a party to the proceedings, to an employment tribunal for determination by the tribunal, and may stay or sist the proceedings in the meantime."
"16. The critical factor in respect of all of the Claimants in this action is that their employment with the Defendant terminated more than six months prior to the commencement of proceedings."
(1) The claims would not be "more conveniently disposed of" separately by the ET, as the ET would not be able to determine any equal pay claim on the merits: it would be bound to dispose of the claims by dismissing them for want of jurisdiction on the limitation ground. The deputy judge said of s.2(3):-" 34. … I do not consider it to be consistent either with the meaning conveyed by the language or by the context in which the language appears that it could be regarded as more convenient for a claim to be disposed of only by an Employment Tribunal in circumstances where it is known to the Court that the Tribunal would have to decline jurisdiction to deal with the claim on the basis that it is out of time pursuant to Section 2(4).""39. …it cannot be more convenient for a claim to be disposed of separately by an Employment Tribunal in circumstances where the Employment Tribunal could not determine the claim on its merits but would be bound to refuse jurisdiction to deal with the claim because it was time barred…"
(2) Further, striking out the claims in those circumstances would offend the EU principle of equivalence as it applies to rights originating in EU law. The purpose of the principle is to ensure that the national rules giving effect to EU rights are not less favourable than those that govern similar domestic actions.
(3) Even if the deputy judge had concluded that it was more convenient for the claims to be disposed of by an ET and that the principle of equivalence did not apply, he would have exercised his discretion by refusing to strike the claims out. The claims were brought in the High Court within the six year limitation period and the effect of striking them out would be to confer on the Council a windfall benefit of debarring the Claimants from pursuing their claims. The interests of justice would not be served by exercising the court's discretion under s.2(3) in such a way.
The Council's submissions
"72. In my judgment the inability of the appellants to commence proceedings before an employment tribunal could be a factor affecting the convenience of the tribunal as a forum for equal pay claims or one affecting the judge's discretionary decision to strike out such claims in the county court. Whether that factor is taken into account in determining whether the equal pay claims can be more conveniently disposed of in the employment tribunal or if such a conclusion is reached on other grounds, in deciding whether to strike out the claims, in my judgment the reasons why the proceedings had not been issued in the employment tribunal in time would be relevant to the decision under …s.2(3)."
"78. 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. If not presenting such proceedings was reasonable, the interests of justice are likely to be served by enabling claimants to continue litigating in a forum which has jurisdiction to hear their claims. Such considerations could affect the decision as to whether the claims could be more conveniently disposed of in the employment tribunal, or, if a judge so concluded, whether discretion should be exercised to strike out the claims in the county court."
Discussion and conclusions
Principle of equivalence
The authorities: Spiliada and Ashby
Lord Justice Davis:
Dame Janet Smith