Brierley & Ors v ASDA Stores Ltd

The Court of Appeal construed Rule 9 of the Employment Tribunals Rules of Procedure 2013 as permitting multiple claimants to present their claims on a single claim form only where the claimants' roles and the work they do are the same or so similar that the claims can properly be said to be based on the same set of facts. Equal value (equal pay) claims require identification of the work done by the claimant and the comparator and thus different jobs ordinarily involve different sets of facts for the purposes of Rule 9. The inclusion of claimants performing different jobs (and of male contingent or 'piggy‑back' claimants) in a single form is therefore an irregularity under Rule 9.

However, the tribunal retains a broad discretion under Rule 6 to waive an irregularity. In exercising that discretion the tribunal must balance prejudice and hardship and have regard to the overriding objective; the existence of an underpayment of tribunal fees or of potential limitation consequences are relevant but not determinative. Where there was no evidence of cynical conduct by claimants or their solicitors, and where striking out would impose substantial delay, cost or loss to claimants (including loss of arrears), the Court of Appeal concluded that waiving the irregularity and dealing with the matter by case management was appropriate in the Brierley context.

Background and parties

• The appeals concern large consolidated equal pay claims brought by predominantly female supermarket employees (supermarket shopfloor roles) who alleged they were paid less than men doing work of equal value in warehouses/distribution centres operated by the same supermarket chains.
• Many claimants were included on single ET1 claim forms; in Brierley some ET1s contained thousands of claimants over multiple job roles.

Procedural history

• At first instance REJ Robertson (Brierley) held the presentation was irregular but waived the irregularity under Rule 6; EJ Pirani (Ahmed) held no irregularity; in a smaller group (Fenton) the tribunal refused to waive and struck the claims out.
• On appeal to the Employment Appeal Tribunal Lewis J held that inclusion of different jobs on a single claim form was an irregularity under Rule 9 and that the EAT should remit Brierley and Ahmed matters for reconsideration; he upheld the strike‑out in Fenton. Permission to appeal to the Court of Appeal was subsequently granted.

Nature of the claim / relief sought

• Claimants sought equal pay remedies by alleging their work was of equal value to that of comparators of the opposite sex and thus sought arrears of pay and related remedies.

Issues framed by the Court

• How should Rule 9 be interpreted: whether multiple claimants may join on a single claim form when they perform different jobs?
• Whether the irregular presentation of claims under Rule 9 can be waived under Rule 6 and, if so, in what circumstances is waiver appropriate?
• What weight should be given to the consequences of fees, limitation/accrual and potential prejudice when exercising Rule 6 discretion?

Court’s reasoning and disposition

• The Court held that Rule 9 requires the claims to be based on the same set of facts and that in equal value claims that involves the work of each claimant and the comparator; therefore claims by employees doing materially different jobs are not based on the same set of facts and their inclusion is an irregularity.
• The Court emphasised the broad discretion in Rule 6 to waive irregularities. Relevant factors include prejudice to respondents, delay and cost, loss of remedy to claimants (including limitation/arrears consequences), and evidence of deliberate evasion of fees. The absence of evidence that claimants or their solicitors acted cynically was important.
• Applying those principles the Court allowed the Brierley appeal and remitted the cases to the employment tribunal to proceed on the merits, dismissed the Fenton appeal, and remitted the Ahmed cases for reconsideration of waiver where appropriate.

The Court commented on the wider context including the then‑recent Supreme Court decision in R (UNISON) v Lord Chancellor concerning the unlawfulness of tribunal fees and on the interaction of tribunal and county court limitation regimes for equal pay claims.

This is an appeal allowed in part. The Court of Appeal held that Rule 9 of the Employment Tribunals Rules 2013 requires that multiple claimants on one claim form must be doing the same or so similar work that their claims are based on the same set of facts; inclusion of claimants doing different jobs (and male contingent claimants) is therefore an irregularity. The tribunal retains a broad discretion under Rule 6 to waive such irregularities and should balance prejudice, delay, cost and the overriding objective; where there was no evidence of cynical conduct and striking out would cause real hardship and wasted process, waiver and case management to deal with disparities is appropriate. The Court allowed the Brierley appeal and remitted those cases to the Employment Tribunal, dismissed the Fenton appeal, and remitted the Ahmed cases for reconsideration of irregularity/waiver in accordance with the judgment.

Appeal from decisions of the Employment Tribunal (REJ Robertson in Brierley; EJ Pirani in Ahmed; ET decisions in Fenton) and from the Employment Appeal Tribunal (Lewis J). EAT references cited in the cover sheet include UKEAT/0059/16, UKEAT/0227/16, UKEAT/0009/16 and UKEAT/0289/15. The Court of Appeal ([2019] EWCA Civ 8) heard the appeals on 23–24 October 2018 and delivered judgment on 17 January 2019.