Ashby & Ors v Birmingham City Council

Equal pay claims based on the statutory equality clause are contractual claims which may be brought in either the courts or an employment tribunal. Under Equal Pay Act 1970 section 2(3), a court must consider the particular proceedings and decide whether an employment tribunal is the more appropriate forum in the interests of the parties and the ends of justice. The court must then decide whether to exercise its discretion to strike out.

The expiry of the employment tribunal limitation period does not automatically prevent a court from finding that disposal there would be more convenient. However, the reasons for the delay and whether the claimant acted reasonably are relevant. A general assessment that equal pay claims are usually suitable for employment tribunals is insufficient.

Fourteen former female home carers and home helpers appealed against the decision of His Honour Judge Owen QC, dated 15 October 2009, striking out their County Court claims against Birmingham City Council.

The claims alleged that the equality clause implied by Equal Pay Act 1970 section 2 entitled them to bonuses and higher basic pay received by male gardeners and gravediggers. The claims were brought within the six-year contractual limitation period but outside the employment tribunal time limit. The central issue was whether the claims could more conveniently be disposed of separately by an employment tribunal under section 2(3), and whether strike-out or abuse of process followed.

1. The appeal was allowed. The orders striking out the claims under Equal Pay Act 1970 section 2(3), and any related decision that the claims were an abuse of process, were set aside. The Council remained entitled to renew its strike-out application.
2. Claims founded on the statutory equality clause are contractual. The general jurisdiction of the High Court and County Court therefore remains available, and section 2(1) permits but does not require proceedings to be brought in an employment tribunal. The legislation did not impose the employment tribunal’s shorter limitation period on contractual claims in the courts.
3. Section 2(3) requires a two-stage process. First, the court must decide whether the particular claim could more conveniently be disposed of separately by an employment tribunal. Secondly, if so, it must decide whether to exercise the discretion to strike out.
4. The relevant question is whether the employment tribunal is the more appropriate forum in which the claim can be tried suitably for the interests of all parties and the ends of justice. The guidance in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 was useful by analogy. The court must examine the issues likely to be contentious, the suitability of each forum, and the particular facts and circumstances. General expertise and procedures available in employment tribunals do not determine the issue.
5. The fact that the employment tribunal proceedings would be time-barred is relevant, but not conclusive. Claimants cannot deliberately allow the tribunal limitation period to expire merely to secure a court forum. Conversely, where delay was reasonable, practical justice may favour permitting proceedings to continue in a court with jurisdiction. The lower court had failed to make findings about why the claims were not brought in time and whether the claimants acted reasonably.
6. The lower court therefore erred by deciding the issue on the general proposition that equal pay claims are ordinarily more conveniently dealt with by employment tribunals. Its abuse-of-process conclusion depended on that error and could not stand.

• High Court (Queen's Bench Division): appeal from the County Court decision of His Honour Judge Owen QC dated 15 October 2009. The strike-out orders were set aside.