ASDA Stores Ltd v Brierley & Ors

An employment tribunal has jurisdiction to determine equal pay complaints, and the Equality Act 2010 expressly provides routes by which the High Court may refer or transfer matters to the tribunal. The statutory scheme does not confer a converse power on the tribunal to send a claim to the High Court merely because that forum appears more convenient. A broad case-management power cannot be used to override the employee’s statutory choice of forum. A stay may be available where parallel domestic proceedings create a risk of inconsistent outcomes, but that is distinct from a unilateral transfer. Even assuming a stay power existed, the tribunal was entitled to retain a complex equal pay claim because of its specialist expertise, the statutory allocation of jurisdiction and the prejudice of restarting proceedings.

More than 7,000 predominantly female Asda store employees brought equal pay claims in the employment tribunal against predominantly male distribution-depot comparators. They alleged that their work was of equal value, while Asda disputed the substantive claims. Asda sought an indefinite stay so that the claims would effectively have to be pursued in the High Court, relying on the scale and complexity of the litigation.

The employment tribunal held that it had no power to impose such a stay and that, even if it did, a stay would be inappropriate. The Employment Appeal Tribunal refused permission on paper and dismissed the renewed application under rule 3(10) in UKEATPA/0671/15. The central questions before the Court of Appeal were whether the tribunal had the relevant power and, if so, whether its discretion had been lawfully exercised.

Disposition. The appeal was dismissed unanimously.

1. Statutory scheme. The Equality Act 2010 gives an employment tribunal jurisdiction over complaints concerning an equality clause or rule while preserving the High Court’s jurisdiction. Section 128 expressly enables a court to strike out a claim where it could more conveniently be determined by an employment tribunal, or to refer an equality question to the tribunal and stay the court proceedings. The statutory scheme contains no corresponding route for transferring a claim from the tribunal to the High Court.
2. Rule 29. The general case-management power in the Tribunal Rules can support an indefinite stay in an appropriate case. The authority of Crofts v Cathay Pacific Airway [2005] ICR 1436 concerned forum non conveniens and the choice between an employment tribunal and a foreign court. That doctrine does not operate between domestic courts. Rule 29 therefore could not be used to relinquish tribunal jurisdiction merely because the High Court was considered more convenient.
3. The court recognised that a stay might potentially be appropriate where parallel tribunal and High Court proceedings created a risk of inconsistent decisions, particularly if the High Court proceedings were further advanced. That possibility did not arise here and did not establish a general domestic transfer power.
4. Discretionary alternative. Even assuming that the tribunal possessed the power sought, it had to consider the particular facts and could not adopt an inflexible rule. It was nevertheless entitled to begin from the strong position that equal pay claims should remain in the specialist tribunal, given the statutory allocation of jurisdiction and the prejudice caused by restarting proceedings. The scale, complexity, importance and novelty of the claims, and the possibility of future High Court claims, did not make transfer the only proper conclusion. The perversity challenge therefore could not succeed.
5. Concessions offered for the first time in the Court of Appeal concerning costs, limitation and a temporary stay could not affect whether the tribunal’s decision was lawful. The appeal was accordingly dismissed.

• Court of Appeal (Civil Division): dismissed the appeal against the Employment Appeal Tribunal’s decision.
• Employment Appeal Tribunal: the President refused permission on paper, and Mrs Justice Laing dismissed the renewed rule 3(10) application in UKEATPA/0671/15.
• Employment Tribunal: held that it had no power to impose an indefinite stay to compel proceedings in the High Court and that, alternatively, such a stay would be inappropriate.