ASDA Stores Ltd v Brierley & Ors

This appeal concerns whether an employment tribunal has power under its general case management powers (rule 29 of the Tribunal Rules) to impose an indefinite stay so as effectively to compel claimants pursuing equal pay claims to bring fresh proceedings in the High Court. The Court of Appeal held that the Employment Tribunal does not have power to relinquish jurisdiction to the High Court in that manner because Parliament, in the Equality Act 2010, expressly contemplates transfers from the High Court to the Tribunal (section 128) but not the reverse, and a broad delegated powers provision cannot be used to override the clear statutory right of a claimant to have an equal pay claim heard in the Tribunal (section 127).

The court further concluded that the practical prejudice to claimants from such a transfer (limitation, loss of six-year accrual under section 132, and exposure to High Court costs) reinforced the conclusion that rule 29 cannot be used to achieve the result sought. Finally, the court held that even if such a power existed, the Employment Tribunal judge had lawfully exercised his discretion in refusing to grant a stay in this case and was entitled to conclude the Tribunal was the appropriate forum.

Background and issues:

• Claimants: over 7,000 predominantly female hourly-paid retail employees of Asda who alleged that their store jobs were of equal value to predominantly male depot comparators but paid less.
• Relief sought: Asda applied for a stay of the Employment Tribunal proceedings such that the claimants would have to pursue or issue proceedings in the High Court, effectively transferring jurisdiction to the High Court.
• Issues before the Court of Appeal: (i) whether an employment tribunal has power under rule 29 to impose an indefinite stay so as effectively to transfer equal pay claims to the High Court; and (ii) if such power exists, whether it was appropriate to exercise it in this case.

Procedural history:

• The Employment Tribunal (Regional Employment Judge Robertson) refused the stay. The Employment Appeal Tribunal (President Langstaff) refused permission on paper and a rule 3(10) oral renewal before Mrs Justice Laing, who after hearing the appellant only, reached the same conclusion. Permission to appeal to the Court of Appeal was granted by Vos LJ.

Court's reasoning and holding:

• The court analysed the statutory scheme in the Equality Act 2010: tribunals have express jurisdiction to determine equality clause complaints (section 127) and the High Court may strike out and refer questions to a tribunal (section 128). There is no statutory provision permitting the Tribunal to transfer jurisdiction to the High Court.
• The court accepted that rule 29 permits stays, and that Crofts v Cathay Pacific Airway shows an indefinite stay can be used in private international law/forum non conveniens contexts, but distinguished that situation from a domestic transfer of jurisdiction where Parliament has legislated for the relationship between courts. There is no domestic doctrine equivalent to forum non conveniens permitting an internal transfer of jurisdiction between domestic courts where statute prescribes the allocation.
• The court emphasised the practical prejudice to claimants if deprived of their statutory right to Tribunal proceedings (limitation risk, restart of six-year accrual under section 132, and exposure to High Court costs), and regarded these consequences as relevant to the vires question.
• The court also addressed the exercise of discretion and concluded that, even if a power existed, the Employment Tribunal judge had not improperly fettered his discretion and was entitled on the facts to conclude the Tribunal was the appropriate forum.

Broader context:

• The court recognised the exceptional scale and complexity of the claims but concluded that those features did not show that Parliament intended tribunals to be deprived of their statutory jurisdiction in favour of the High Court.

Appeal dismissed. The Court of Appeal held that an Employment Tribunal does not have power under its general case management rule (rule 29) to impose an indefinite stay for the purpose of relinquishing jurisdiction to the High Court in equal pay claims because Parliament provided the statutory allocation of jurisdiction in the Equality Act 2010 (sections 127 and 128) and did not contemplate transfers from Tribunals to the High Court. The court also held that even if such a power existed, the Tribunal judge had lawfully exercised his discretion in refusing to stay the proceedings.

The claims were initiated in the Employment Tribunal. Asda applied there for a stay to compel High Court proceedings; the Employment Tribunal (Regional Employment Judge Robertson) refused the stay. The Employment Appeal Tribunal (President Langstaff) refused permission on paper; a rule 3(10) oral renewal before Mrs Justice Laing (UKEATPA/0671/15) was dismissed after hearing the appellant only. Permission to appeal to the Court of Appeal was granted by Vos LJ, leading to this decision [2016] EWCA Civ 566.