Butt & Ors v Reading Borough Council

The Court of Appeal considered whether claim forms in the "Gordon multiple" (brought after Reading Borough Council introduced a single-status pay and grading structure on 1 May 2011) objectively pleaded equal pay complaints extending to a period before 1 May 2011. The court applied ordinary principles of construing documents, reading the form as a whole and in its procedural context. It held that, despite a boilerplate sentence referring to claims for the "previous six years", the pleaded grounds and the surrounding context showed the claims were confined to the period after 1 May 2011 and were not intended to duplicate the earlier "James multiple" claims.

Key statutory provisions appearing in the pleadings and in the reasoning included the Equal Pay Act 1970 and the Equality Act 2010 (in particular references to sections now identified as ss.65(4), 80 and s.132 for limitation). The court treated references to the 1970 Act alongside the 2010 Act as belt-and-braces drafting rather than conclusive evidence that earlier-period claims were advanced.

Background and parties

The claimants were employees of Reading Borough Council who had earlier pursued multiple equal pay claims consolidated as the "James multiple". After the council introduced a single-status job evaluation and pay structure on 1 May 2011, a further set of claims (the "Gordon multiple") was issued by employees who were already claimants in the James multiple. The council maintained that the Gordon claim forms advanced complaints only about the post-1 May 2011 regime and did not revive or duplicate complaints about the pre-1 May 2011 terms which had been the subject of the James proceedings.

Nature of the application and procedural history

• The issue before the tribunal, and ultimately before the Court of Appeal, was the objective construction of the Gordon claim forms: did they include equal pay complaints predating 1 May 2011?
• An Employment Tribunal (judgment dated 8 August 2018) held the Gordon claims did not include pre-1 May 2011 complaints. The claimants appealed to the Employment Appeal Tribunal where Lavender J allowed their appeal (ex tempore, 4 October 2019). The council obtained permission to appeal to the Court of Appeal.

Issues framed by the court

1. Whether, on an objective construction of the claim form read as a whole and in context, the Gordon multiple advanced complaints about equal pay dating to before 1 May 2011.
2. Secondary points raised by the claimants included reliance on references to the Equal Pay Act 1970 and to a six-year limitation reference in the form, and an argument about preserving claims in the event of a break in the "stable employment relationship".

Reasoning and conclusions

The Court of Appeal held that the correct approach was to construe the claim form objectively, reading the pleading as a whole and having regard to the procedural history. Although paragraph 2 of the form contained a boilerplate reference to claims in the "previous six years", the court found that the more specific pleaded matters and the immediate context (including the simultaneous use of separate claim forms by some solicitors) showed the Gordon claims were intended to address the consequences of the new pay structure from 1 May 2011 onwards. The references to the Equal Pay Act 1970 and to six years were treated as belt-and-braces or boilerplate drafting rather than decisive indicators of an intention to plead pre-1 May 2011 complaints. The court therefore restored the Employment Tribunal decision and allowed the council's appeal.

Procedural note: the council's alternative abuse of process argument (that any earlier-period claims duplicated the James multiple) was not before the Court of Appeal.

Appeal allowed. The Court of Appeal held that, on an objective construction of the Gordon claim form read as a whole and in its procedural context, the pleaded grounds were confined to complaints about the pay and grading structure introduced on 1 May 2011 and did not include equal pay complaints predating that date. Boilerplate references to the "previous six years" and to the Equal Pay Act 1970 were treated as generic drafting and did not displace the contextual interpretation.

Employment Tribunal (decision communicated 8 August 2018) held the Gordon multiple did not include complaints predating 1 May 2011. Employment Appeal Tribunal (Lavender J, ex tempore, 4 October 2019) allowed the claimants' appeal. Court of Appeal ([2020] EWCA Civ 1642, 22 October 2020) allowed the council's appeal and restored the Employment Tribunal decision.