Birmingham City Council v Abdulla and others

The Supreme Court dismissed Birmingham City Council's appeal against the refusal to strike out 174 equal pay claims. The claims were brought in the High Court under the equality clause deemed into contracts by section 1 of the Equal Pay Act 1970 (as amended) and many would have been time‑barred if brought to an employment tribunal because section 2(4) fixed a short qualifying period. The court held that, for the purposes of section 2(3) of the Equal Pay Act (and its successor, section 128 of the Equality Act 2010), a claim can only be struck out as one which "could more conveniently be disposed of separately by an employment tribunal" if the tribunal could, in principle, determine the claim on its merits; where the tribunal would be bound to dismiss it as time‑barred it cannot be treated as the more convenient forum.

The majority therefore concluded that section 2(3) does not operate to import the tribunal's short limitation periods into court proceedings and that Birmingham's attempt to strike out the court claims on that basis failed. The court recognised that the discretion under section 2(3) remains available in cases of abuse of process and that other consequences (for example, adverse costs orders) may follow if a claimant unreasonably pursued court proceedings instead of tribunal proceedings.

Background and facts:

• The 174 claimants (mostly women) alleged that Birmingham City Council breached the contractual "equality clause" included by operation of the Equal Pay Act 1970, as substituted by the Sex Discrimination Act 1975, in particular as to work rated as equivalent (section 1(2)(b)). They alleged entitlement to parity with male comparators in bonuses and additional payments conferred by the employer's Blue Book and job evaluation scheme.
• Many claimants had ceased employment between 2004 and 2008. Claims were issued in the High Court on 30 July 2010, within the six‑year court limitation under the Limitation Act 1980 but long after the six‑month qualifying period for tribunal complaints under section 2(4) of the Equal Pay Act.

Procedural posture:

• Birmingham applied under section 2(3) of the Equal Pay Act for a direction that the claims be struck out because they "could more conveniently be disposed of separately by an employment tribunal". The deputy High Court judge dismissed that application (17 December 2010). The Court of Appeal dismissed Birmingham's appeal ([2011] EWCA Civ 1412). Birmingham appealed to the Supreme Court.

Issues framed:

1. Whether, under section 2(3) of the Equal Pay Act (and similarly under section 128 of the Equality Act 2010), a court may strike out claims brought in court on the ground that they could "more conveniently" be disposed of by an employment tribunal where those claims would be time‑barred if presented to the tribunal; and if so whether the reasons for failure to present to the tribunal are relevant.
2. Whether a ruling in Birmingham's favour would infringe EU principles, in particular the principles of effectiveness and equivalence (with reference to the ECJ and House of Lords decisions in Preston).

Court's reasoning and conclusion:

• The majority (Lord Wilson, Lady Hale and Lord Reed) emphasised the natural meaning of "more conveniently": a practical inquiry into the forum more fitted to investigate the merits. They concluded that a tribunal which would be obliged to dismiss a claim as time‑barred cannot be the more convenient forum for determination on the merits. Accordingly, the court must not, by the vehicle of section 2(3), import the tribunal's short limitation periods into court proceedings so as to shorten the longer limitation available in court. The reasons why a claimant did not present to the tribunal were held irrelevant to the convenience inquiry except insofar as abuse of process arises; but they may be relevant to costs or other judicial responses.
• The majority rejected the submission that this outcome infringed EU law principles, concluding that existing authority (in particular Preston) did not require a different result.
• Lord Sumption (with Lord Carnwath) dissented in part. He would have allowed the appeal and remitted the matters for individual consideration under a multi‑factorial test in which the tribunal time‑bar, the claimant's reasons for delay, justice between parties, and other factors could be weighed; he considered that giving effect to the legislature's special tribunal time limits better served the statutory scheme.

Relief sought:

• Birmingham sought strike‑out of the court claims under section 2(3) of the Equal Pay Act, or in the alternative remittal for inquiry into claimants' reasons for not presenting tribunal complaints within the qualifying period.

Appeal dismissed. The majority held that, under section 2(3) of the Equal Pay Act 1970 (and the successor provision in section 128 of the Equality Act 2010), a claim cannot be struck out as one that "could more conveniently be disposed of separately by an employment tribunal" where the tribunal would be obliged to dismiss the claim as time‑barred; "more conveniently" requires that the tribunal be able in principle to determine the claim on its merits. The court retained that the discretion to strike out remains for abuse of process and that conduct may be relevant to costs. A minority would have allowed the appeal and remitted for individualized consideration of multiple factors including reasons for delay.

Deputy High Court judge (Queen's Bench Division, sitting as deputy judge): application to strike out dismissed (17 December 2010). Court of Appeal: Birmingham's appeal dismissed ([2011] EWCA Civ 1412, judgment 29 November 2011). Appeal to the Supreme Court: dismissed ([2012] UKSC 47, judgment 24 October 2012).