Birmingham City Council v Abdulla & Ors

The Court of Appeal dismissed the Council's appeal against the Deputy High Court Judge's refusal to strike out equal pay claims under s.2(3) of the Equal Pay Act 1970. The court held that the statutory discretion in s.2(3) is directed to the comparative convenience of the Employment Tribunal and the ordinary courts, and that where claimants have validly issued proceedings in the ordinary courts within the six year limitation period under the Limitation Act 1980, striking out those claims so as to leave the claimants with no forum would ordinarily be inappropriate.

The court treated the expiry of the Employment Tribunal time limit as a relevant and often weighty factor. It rejected the proposition that the expiry of tribunal limitation was irrelevant and held that reasons for failing to present tribunal complaints would only be a relevant factor in exceptional cases, for example where an abuse of process is alleged. The court distinguished the Spiliada forum non conveniens analogy and the first instance decision in Ashby, and concluded there was no error in the deputy judge's exercise of discretion.

Background and parties: Birmingham City Council appealed an order of Mr Colin Edelman QC dismissing its application under s.2(3) of the Equal Pay Act 1970 to strike out equal pay claims brought by Mrs Abdulla and 174 other claimants. Most claimants were women and formerly employed by the Council. The claims had been issued in the High Court within the six year limitation period under the Limitation Act 1980 but, by the time proceedings were commenced, the six month Employment Tribunal time limit in ss.2(4) and 2ZA of the 1970 Act had expired for the claimants.

Nature of the application: The Council sought a declaration that the court should strike out or otherwise decline to exercise jurisdiction over equal pay claims under s.2(3) on the basis that such claims were more conveniently disposed of in the Employment Tribunal.

Issues framed:

• whether the ordinary courts should strike out equal pay claims properly commenced in time where the Employment Tribunal time limit has expired;
• whether the expiration of the tribunal time limit is relevant to the s.2(3) discretion;
• whether the court should take into account the reasons why claimants did not present tribunal complaints in time, and whether the EU principle of equivalence bears on the exercise of the discretion;
• the applicability of the Spiliada forum non conveniens principles and the significance of the Ashby decisions.

Reasoning: The court analysed s.2(3) as a discretion directed to the convenient allocation of judicial business between the ordinary courts and the Employment Tribunal. It held that the tribunal time limit is a relevant consideration and in most cases will be of considerable weight because striking out a timely claim in the ordinary courts may leave claimants without any forum to obtain a merits determination. The court rejected the submission that the tribunal time limit was irrelevant and rejected the Spiliada analogy as inapt to domestic jurisdiction allocation. It held that the reasons for not presenting tribunal complaints may be relevant only in exceptional circumstances, for example where abuse of process is alleged, and are not generally a burden on claimants who validly choose the ordinary courts. The deputy judge's conclusion that he should not strike out the claims was not plainly wrong.

Procedural posture: Permission to appeal had been granted after initial refusal. The appeal was heard by the Court of Appeal and dismissed.

The appeal was dismissed. The Court of Appeal held that s.2(3) of the Equal Pay Act 1970 confers a discretionary power to strike out or refer equal pay claims to an Employment Tribunal based on comparative convenience, but the expiry of the Employment Tribunal time limit is a relevant and often weighty factor. Striking out claims properly issued within the six year limitation period so as to leave claimants without any forum would ordinarily be inappropriate. Reasons for failing to present tribunal complaints in time are relevant only in exceptional cases, such as where abuse of process is alleged. The deputy judge had not erred in law or in the exercise of his discretion.

This is an appeal from the High Court (Queen's Bench Division) order of Mr Colin Edelman QC of 17 December 2010 dismissing the Council's application under s.2(3) of the Equal Pay Act 1970. Permission to appeal was initially refused on paper by Rimer LJ and subsequently granted by Hooper LJ at renewed oral hearing on 18 May 2011. The appeal to the Court of Appeal was heard on 7 October 2011 and decided on 29 November 2011 ([2011] EWCA Civ 1412).