Farmah v Birmingham City Council

Rule 9 permits multiple claimants to use one claim form only when the complaints they make rest on the same set of facts.

For equal pay complaints those facts include the claimant's work, the male comparator's work and the difference of gender; different jobs therefore involve different factual sets.

A tribunal retains a judicial discretion under Rule 6 to strike out or to waive irregular joinder even where the result is an underpayment of fees.

This judgment consolidates five related appeals about the presentation of multiple equal-pay claims on single claim forms under Rule 9 of the Employment Tribunal Rules. The appeals arise from preliminary hearings in several Employment Tribunal proceedings involving supermarket and local-authority employees. The core question was whether claims by different employees doing different jobs, or contingent male claims tied to female claimants, could be included on one form. The tribunal decisions below reached inconsistent results about irregular joinder and about whether to strike out or waive irregularities. The Employment Appeal Tribunal determined the proper interpretation of Rule 9 and the correct approach to the exercise of the strike-out/waiver discretion.

1. The appeal court allowed some respondent appeals and dismissed some claimant appeals as set out in the disposal below. The court made the following legal holdings.
2. Rule 9 requires identification of the complaints and the set of facts necessary to establish those complaints and a comparison of those sets of facts. In equal pay claims the essential factual set includes (a) the work the claimant does, (b) the work of the comparator, and (c) that the comparator is of the opposite sex. (See paras [61] to [63].)
3. Accordingly, claimants performing different jobs do not have claims based on the same set of facts for the purposes of Rule 9. Contingent male claims that depend on a successful female claimant likewise rely on a different factual set and are not the same. (See paras [61] to [63] and the Conclusion.)
4. An Employment Tribunal has a discretion under Rule 6 to take such action as it considers just when there is irregular joinder, including waiving the requirement or striking out the irregular claims. That discretion exists even where the irregularity has led to an underpayment of issuing or hearing fees. The possibility of underpaid fees is a highly material factor but does not oust the tribunal's discretion. (See paras [149] to [156].)
5. In exercising the discretion tribunals must consider (inter alia): the seriousness of the breach (including fee loss); how the irregularity arose (deliberate avoidance or careless presentation); prejudice to claimant(s) (for example limitation and loss of arrears) and to respondent(s); and the overriding objective. Striking out is a draconian step and must be proportionate to the circumstances. (See paras [157] to [178].)
6. Applying those principles: (a) Employment Judge Robertson was correct to hold that claims by different-job claimants in Asda and Fenton were not based on the same facts; (b) Employment Judge Pirani was wrong to hold the Ahmed claim form regular; (c) Employment Judge Woffenden was right to find irregularity in Farmah and Callaghan where claim forms combined claimants doing different work, but she erred in treating some claimants included in an irregular form as unaffected by the irregularity. Those aspects were remitted for reconsideration in accordance with this judgment. (See "Disposal".)
7. Disposal: parts of the appeals are allowed and parts dismissed. Several decisions below are remitted to the Employment Tribunal for reconsideration applying this ruling on Rule 9 and the exercise of the Rule 6 discretion. The detailed allocation of allowed and dismissed grounds is recorded in the judgment.

1. Employment Appeal Tribunal Judgment re interpretation of Rule 9 and exercise of Rule 6 discretion; remitted certain matters to the Employment Tribunal for reconsideration (20 June 2017).
2. Employment Tribunal (various judges) Preliminary hearings and strike-out/case-management orders in the underlying equal pay claims (reported in the judgment text as the first-instance decisions remitted for reconsideration).