Birmingham City Council v Abdulla & Ors

Section 2(3) of the Equal Pay Act 1970 confers a discretion concerned with the comparative convenience of two available jurisdictions. It is not ordinarily a power to strike out an in-time claim merely because an employment tribunal is the more specialist forum. Where the tribunal limitation period has expired and the tribunal could not determine the claim on its merits, that circumstance carries considerable weight against striking out the claim in the ordinary courts. Such an order would deprive the claimant of any merits forum and undermine the statutory choice of jurisdiction. The reasons for failing to present a timely tribunal complaint may be relevant in exceptional cases, particularly where abuse of process is alleged.

Birmingham City Council appealed against an order of Mr Colin Edelman QC, sitting as a Deputy High Court Judge, dismissing its application under section 2(3) of the Equal Pay Act 1970. Mrs Abdulla and 174 other claimants had brought equal pay claims in the High Court within the six-year limitation period for contract claims. Their employment tribunal limitation periods had expired.

The Council argued that the claims could more conveniently be disposed of by the specialist employment tribunal, and that the expiry of the tribunal limitation period was irrelevant. The central issue was whether the ordinary court could strike out in-time claims when the employment tribunal would have to reject them for want of jurisdiction, leaving no forum in which they could be determined on their merits.

1. Appeal dismissed. Lord Justice Mummery gave the leading judgment. Lord Justice Davis and Dame Janet Smith agreed.
2. An equal pay claim under the Equal Pay Act 1970 is founded on breach of contract, with the contractual obligations modified by the statutory equality clause. The ordinary courts and employment tribunals have concurrent jurisdiction to determine such claims.
3. Section 2(3) confers a judicial discretion directed to the comparative convenience and allocation of judicial business between two available forums. It is not the ordinary strike-out jurisdiction applicable to abuse of process. The relevant assumption is that both forums can determine the claim on its merits.
4. The expiry of the employment tribunal limitation period is a relevant circumstance and, in most cases of this kind, one of considerable weight. Striking out claims brought in time in a court with jurisdiction would deprive the claimants of a merits determination, because the tribunal would be bound to reject them for want of jurisdiction. That was not a disposal more conveniently achieved in the tribunal and would undermine the statutory choice of forum under section 2 of the Act.
5. The court left open the application of the EU principle of equivalence. It was unnecessary to decide that issue. The Council had not established any abuse of process or any other basis for remitting the matter for further factual findings. The analogy with Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460 was inapposite because that authority concerned forum non conveniens in conflict-of-laws litigation, not the domestic jurisdictional choice created by section 2(3).
6. As additional guidance, section 2(3) is more naturally suited to mixed proceedings in which equal pay issues can be hived off to the tribunal. Specialist expertise may favour that course for comparator or genuine material factor issues, but not necessarily where the issue is simply the meaning of pay in the light of EU law. The reasons for failing to present a timely tribunal complaint may matter in exceptional cases involving alleged abuse of process, but no such case was established here.

• Court of Appeal (Civil Division): dismissed the Council’s appeal and upheld the refusal to strike out the equal pay claims: [2011] EWCA Civ 1412.
• High Court of Justice, Queen’s Bench Division: Mr Colin Edelman QC, sitting as a Deputy High Court Judge, dismissed the Council’s application under section 2(3) of the Equal Pay Act 1970 on 17 December 2010.