Birmingham City Council v Abdulla and others

A court may strike out an equal pay claim under section 2(3) of the Equal Pay Act 1970 only where an employment tribunal offers the more convenient forum for investigating its merits. A tribunal cannot be the more convenient forum if the claim would be time-barred there.

The claimant’s reasons for missing the tribunal time limit do not bear on that statutory inquiry. They may, however, be relevant to the court’s inherent jurisdiction concerning abuse of process or to costs. The same construction applies to section 128(1) of the Equality Act 2010.

The respondents, mainly women formerly employed by Birmingham City Council, brought High Court claims alleging breach of contractual equality clauses under the Equal Pay Act 1970. Their claims were within the six-year court limitation period but outside the period for presenting complaints to an employment tribunal.

A deputy High Court judge refused the Council’s application to strike out the claims under section 2(3). The Court of Appeal dismissed the Council’s appeal in [2011] EWCA Civ 1412. The Council appealed to the Supreme Court, contending that claims should ordinarily be struck out unless the claimant reasonably explained the failure to proceed before the tribunal in time.

The central issue was whether a claim could be disposed of more conveniently by an employment tribunal when it would necessarily be time-barred there.

1. Appeal dismissed by a majority. Lord Wilson, with whom Lady Hale and Lord Reed agreed, held that the claims could not more conveniently be disposed of by an employment tribunal because they would be time-barred there. The Council’s application under section 2(3) of the Equal Pay Act 1970 was therefore rightly rejected.

2. The Act created a contractual equality clause and conferred concurrent jurisdiction on courts and employment tribunals. Parliament did not oust the ordinary courts’ jurisdiction. The strict tribunal time limit was consistent with the continued availability of court proceedings subject to the ordinary limitation period.

3. The word “conveniently” in section 2(3) required a straightforward practical inquiry into which forum was better fitted to investigate and determine the merits. It did not authorise a broader, multifactorial inquiry into the interests of justice. A tribunal which had to dismiss a claim immediately as time-barred could not be the more convenient forum. The claimant’s reasons for failing to proceed there in time were irrelevant to this statutory question.

4. The forum non conveniens reasoning in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 addressed the wider suitability of competing jurisdictions and did not govern section 2(3). The contrary approach in Ashby v Birmingham City Council [2011] EWHC 424 (QB) was rejected. The majority preferred the policy in Restick v Crickmore [1994] 1 WLR 420, under which timely, arguable proceedings are not ordinarily struck out for a procedural mistake.

5. The court retained its inherent power to strike out an abusive claim. A claimant’s unreasonable choice of the court might also affect costs under CPR rule 44.3(4)(a). The separate statutory power to refer a question concerning an equality clause to a tribunal remained available. The majority’s construction also governs section 128 of the Equality Act 2010.

6. On the alternative EU issue, the Council’s proposed construction would not infringe the principle of equivalence. Preston v Wolverhampton Healthcare NHS Trust (No 2) [2001] UKHL 5 established that the six-month tribunal rule in a standard case was not less favourable than the limitation regime governing the comparable domestic contractual action.

7. Lord Sumption, with whom Lord Carnwath agreed, dissented. He considered that “conveniently” required a multifactorial interests-of-justice assessment, including the reason for the delay, evidential prejudice, costs exposure and the legislative policy against stale claims. He would have allowed the appeal and remitted the claims for individual consideration.

1. United Kingdom Supreme Court: By a majority, dismissed Birmingham City Council’s appeal and upheld the refusal to strike out the claims: [2012] UKSC 47.

2. Court of Appeal: Dismissed the Council’s appeal from the deputy judge’s order: [2011] EWCA Civ 1412.

3. High Court, Queen’s Bench Division: Mr Colin Edelman QC, sitting as a deputy judge, dismissed the Council’s application to strike out the claims.