Brierley & Ors v ASDA Stores Ltd

Under the Employment Tribunals Rules of Procedure 2013, Rule 9 permits multiple claimants to use one claim form only where their roles and work are the same or sufficiently similar for their claims to rest on the same set of facts. Common themes or common comparators do not suffice where the factual work inquiries differ.

An irregular joinder is not automatically void or subject to strike-out. Rule 6 confers a broad discretion. In deciding whether to waive the irregularity, the tribunal must assess utility, delay, cost, genuine prejudice and the claimants’ risk of losing claims or arrears. A limitation or arrears windfall is not genuine prejudice. Contingent claims are irregularly joined, but do not vitiate the whole form.

These conjoined appeals concerned large equal-pay claims by supermarket employees. Claimants in Brierley and Fenton had joined claims involving different jobs on single ET1 forms; in Ahmed, Sainsbury’s claimants had done likewise.

REJ Robertson found Brierley irregular but waived the irregularity, and struck out Fenton. EJ Pirani found no irregularity in Ahmed. Lewis J held that claims involving different jobs were not based on the same set of facts, found the Brierley waiver approach flawed, remitted Brierley and Ahmed, and upheld the Fenton strike-out: [2018] ICR 921. The central issues were the construction of Rule 9 and the proper exercise of the Rule 6 discretion.

The Court of Appeal unanimously held that the claims were irregularly joined for Rule 9 purposes, but differed in emphasis on the reasoning concerning waiver.

1. Rule 9. Multiple claims are permissible where, whatever the job titles, the claimants’ roles and work are the same or so similar that the claims can properly be said to be based on the same set of facts. The claimants’ personal circumstances need not be identical. Differences in hours or length of service do not necessarily matter. The work done, rather than job titles, is the relevant focus. Common themes, common employers or shared comparators do not overcome materially different factual inquiries.
2. Contingent claims. A male claimant bringing a contingent or piggy-back claim relies on a different factual comparison from the female claimants and is irregularly included in their form. That irregularity does not vitiate the whole claim form: [2009] 1CR 1426.
3. Rule 6. An irregular Rule 9 joinder is not void and there is no presumption that it must be struck out. Rule 6 gives the Employment Tribunal a broad discretion to take such action as is just, including waiver. The Employment Tribunals Rules of Procedure 2013 must be applied with the overriding objective, but that objective cannot override Rule 9’s plain wording.
4. Waiver. Relevant considerations included the utility of re-presenting the claims, delay, additional cost, previous tribunal practice, genuine prejudice to the respondent, prejudice to claimants through lost claims or arrears, and whether the presentation was a deliberate attempt to avoid fees. Loss of a limitation defence or arrears advantage was a windfall, not genuine prejudice, absent forensic prejudice such as faded memories or lost records. The availability of fresh proceedings and the absence of issue estoppel were also relevant: [2012] UKSC 47; [2014] EWCA Civ 1521. Longmore LJ additionally considered that a bona fide but unsuccessful construction argument was not inexcusable, and that fee underpayment was irrelevant after [2017] UKSC 51.
5. Orders. The Brierley appeal was allowed and the claims were remitted to the Employment Tribunal to proceed on the merits. The Fenton appeal was dismissed. The Ahmed claims were remitted for any remaining Rule 9 and Rule 6 issues to be determined in accordance with the judgment.

1. Court of Appeal (Civil Division): appeals in Brierley, Fenton and Ahmed disposed of under [2019] EWCA Civ 8.
2. Employment Appeal Tribunal: Lewis J held that claims by claimants doing different jobs were not based on the same set of facts, remitted Brierley and Ahmed, and upheld the Fenton strike-out: [2018] ICR 921.
3. Employment Tribunals: Brierley was found irregular but regularised by waiver; Fenton was struck out; Ahmed was allowed to proceed on the basis that no Rule 9 irregularity existed.