Biktasheva v University of Liverpool (EQUAL PAY)

A withdrawal dismissal under Rule 52 may preclude a later equal-pay complaint through cause of action estoppel. In a “like work” claim, the individual comparator is not ordinarily the cause of action. The material question is whether the work relied on in the later claim differs from the work relied on previously.

Work need not be identical. Under section 65(2) of the Equality Act 2010, it is enough that it is the same or broadly similar and that any differences are not of practical importance. A claimant who pleads the same type of work throughout cannot avoid estoppel merely by naming new comparators, including one appointed after the earlier proceedings.

The claimant had withdrawn a 2015 equal-pay claim alleging like work with two male grade 9 lecturers. Her solicitors withdrew the whole claim without reserving a right to bring a further claim, and the Employment Tribunal dismissed it following withdrawal.

In 2018 she brought a further like-work claim, alleging that she had performed grade 9 work since 2007 and naming four different grade 9 comparators. The Employment Tribunal struck out claims based on three comparators under Henderson v Henderson, declined to strike out the whole claim for cause of action estoppel, and made a deposit order concerning the fourth comparator.

The claimant appealed on a limited ground concerning one comparator. The respondent cross-appealed, contending that cause of action estoppel barred the entire 2018 claim. The central issue was whether the newly named comparators gave rise to a new cause of action.

1. Cross-appeal allowed; appeal dismissed. The Employment Appeal Tribunal substituted a decision striking out the 2018 claim against all comparators. The 2015 withdrawal dismissal had the consequences contemplated by Rule 52 of the The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The claimant had neither reserved a right to bring a further complaint nor obtained an interests-of-justice exception.

2. Cause of action estoppel prevents relitigation of an identical cause of action even if new evidence or changed circumstances are asserted. The more flexible principle in Henderson v Henderson concerns a distinct cause of action which could and should have been advanced earlier; it did not arise once the 2018 complaint was held to be the same cause of action.

3. For a like-work equal-pay claim, the essential comparison is the work relied on, not the identity of the person selected as comparator. Applying Prest v Mouchel Business Services Ltd [2011] ICR 1345, a different comparator does not create a substantially new claim unless the work said to be done by that comparator is different from the work relied on in the earlier claim.

4. The Employment Tribunal had erred by treating non-identical work by individual lecturers as necessarily different work. Section 65(2) of the Equality Act 2010 requires work to be the same or broadly similar, with differences that are not practically important. It does not require identical duties or a minute comparison. Nor does a comparator's later appointment itself establish different work.

5. On the pleaded case, only one conclusion was reasonably possible: the claimant alleged throughout that she had performed grade 9 work since 2007, broadly similar to all comparators, and did not allege a material change in the type of work. The EAT could therefore determine the issue itself rather than remit it.

• Employment Appeal Tribunal: allowed the respondent’s cross-appeal, dismissed the claimant’s appeal, and struck out all parts of the 2018 claim by cause of action estoppel: [2020] UKEAT 0253_19_0311.

• Employment Tribunal: struck out the claims based on three comparators under Henderson v Henderson, rejected the respondent’s contention that cause of action estoppel barred the entire claim, and made a deposit order concerning the fourth comparator.