Farmah v Birmingham City Council

It is not enough that equal pay claims share a broad theme. Two or more claimants may join a single claim form only if the factual elements necessary to establish each complaint are the same. In equal pay cases that means the set of facts must include the claimant's work, the comparator's work and the fact of cross-gender comparison. A tribunal retains a judicial discretion under the Rules to waive an irregular joinder or to strike out irregular claims. The discretion must weigh seriousness, how the breach arose, any deliberate avoidance of fees, prejudice to parties, and the overriding objective.

This appeal bundle concerned multiple large-scale equal pay claim forms in which claimants carrying out different jobs were included together. The central question was the interpretation of Rule 9 of the Employment Tribunal Rules of Procedure 2013 and the proper exercise of Rule 6 powers to waive or strike out irregularly joined claims. The appeals arose from preliminary decisions in several Employment Tribunals (including Asda v Brierley; Fenton; Farmah; Callaghan; Ahmed v Sainsbury's) about whether inclusion of multiple claimants doing different work in one claim form complied with Rule 9 and, if not, whether striking out or waiver was appropriate. The EAT considered the statutory framework (notably Part 5 of the Equality Act 2010), prior case-law, the Rules, and the Fees Order, and remitted some matters for re‑consideration by Tribunals in accordance with its legal conclusions.

(1) The appeals raise two principal issues: the proper interpretation of Rule 9 and the correct approach to the exercise of the Rule 6 discretion to strike out or waive irregular joinder (see "Issues").

(2) Rule 9 requires the Tribunal to identify the complaints being made and then the set of facts necessary to establish those complaints. Two or more claimants may join a claim form only if those sets of facts are the same (Rule 9 read with Rule 1 definitions and the overriding objective) (see paras [61]–[75]; [123]–[132]).

(3) In equal pay claims under Part 5 of the Equality Act 2010 the factual core of each complaint comprises (a) the work the claimant does, (b) the work the comparator does, and (c) the cross‑gender comparator relationship. If claimants do different jobs their claims are not based on the same set of facts for Rule 9 purposes (see paras [61]–[75]; [123]–[132]).

(4) The authorities cited (including Prest; Potter; Bainbridge) support analysing equal pay complaints by reference to the factual comparison required (see paras [72]–[78]). The court treated those authorities as consistent with the Rule 9 analysis (considered/applied where used in reasoning).

(5) A Tribunal has a discretion under Rule 6 to waive an irregularity or to strike out claims for non‑compliance with Rule 9. That discretion remains even where the irregular inclusion has resulted in the underpayment or avoidance of fees. The underpayment of fees is, however, a highly material factor in exercising the discretion (see paras [199]–[204]).

(6) Relevant considerations when exercising the discretion include: seriousness of the breach (fee underpayment); how the breach arose; any deliberate avoidance of fees; whether legal advisers failed to take steps to satisfy Rule 9; prejudice to claimants (e.g. limitation/arrears consequences) and to respondents; administrative burdens and the overriding objective; and proportionality given the draconian nature of strike out (see paras [205]–[237]).

(7) Application to the individual appeals:

1. The Employment Judge in Asda v Brierley and in Fenton was correct that claims by female claimants doing different jobs, and contingent male claims, were not based on the same set of facts. The Tribunal's decision not to strike out in Asda is set aside and remitted for reconsideration in light of the proper exercise of discretion (disallowed cross‑appeals; remittal) (see "Disposition").
2. The Employment Judge in Ahmed (Sainsbury's) erred in treating claims by four claimants doing different jobs as based on the same set of facts. That appeal is allowed and remitted for reconsideration (see paras [141]–[152]).
3. In Farmah and Callaghan the Employment Judge was right to treat as irregular inclusion of claimants doing different jobs. But she erred in treating some claimants included in the same (irregular) claim form as non‑irregular because they could have been joined on a separate compliant form. Those decisions are set aside and remitted for reconsideration of the Rule 6 exercise (see paras [153]–[198]; [238]–[250]).

(8) Orders: appeals allowed in the respects specified; other appeals dismissed; remittals to Employment Tribunals to re‑exercise discretion in accordance with this judgment. The EAT emphasised that any remitted matters should apply the factors and approach explained above (see "Disposal").

• Employment Appeal Tribunal judgment allowing and dismissing various appeals and remitting matters to Employment Tribunals for reconsideration in accordance with this judgment ([2017] UKEAT 0286_15_2006).
• Employment Tribunal (various preliminary hearings) preliminary decisions in Asda v Brierley, Fenton, Farmah, Callaghan and Ahmed, which were the subject of these EAT appeals and are described and remitted where indicated.