(1)If it appears to a court in which proceedings are pending that a claim or counter-claim relating to an equality clause or rule could more conveniently be determined by an employment tribunal, the court may strike out the claim or counter-claim.
(2)If in proceedings before a court a question arises about an equality clause or rule, the court may (whether or not on an application by a party to the proceedings)—
(a)refer the question, or direct that it be referred by a party to the proceedings, to an employment tribunal for determination, and
(b)stay or sist the proceedings in the meantime.
Cases considering section 128 4
[2012] UKSC 47 · 24 October 2012Interprets
As successor to the first part of section 2(3) of the 1970 Act, the provision likewise cannot support strike-out in favour of a tribunal where the claim would be time-barred there (see para [29]).
The provision preserves the court’s power to refer a question concerning the operation of an equality clause to an employment tribunal even when a tribunal claim would be time-barred (see para [31]).
[2016] EWCA Civ 566 · 22 June 2016Interprets
Interprets the transfer scheme as expressly enabling court-to-tribunal transfer or referral, without providing a tribunal-to-High Court route. That asymmetry was central to rejecting reliance on Rule 29 to achieve the proposed transfer. (see paras [10]-[11]; [21])
Interprets the provision as allowing the High Court to strike out an equality claim where it could more conveniently be determined by an employment tribunal. It illustrates the express statutory route from the High Court to the tribunal. (see paras [10]-[11])
Interprets the provision as allowing a court to refer an equality question to an employment tribunal and stay the court proceedings while the question is determined. It does not provide a converse tribunal-to-High Court transfer power. (see paras [10]-[11])
Interprets the provision as authorising referral of an equality question arising in court proceedings to an employment tribunal. The provision forms part of the one-way statutory arrangement relied on by the court. (see paras [10]-[11])
Interprets the provision as permitting the court proceedings to be stayed or sisted while the referred equality question is determined by the tribunal. It does not authorise the tribunal to relinquish its own jurisdiction to the High Court. (see paras [10]-[11])
[2023] EAT 81 · 26 May 2023Limits
Section 128 was considered in explaining why the reasoning in the equal-pay case of Asda did not govern this case. Its statutory transfer structure was specific to equal-pay claims. (see paras [54]-[55])
What each judgment says about section 128 is in the case-law panel in the full Act.
418.The Act does not prevent the civil courts from considering a contractual claim relating to an equality clause or rule. However, this section gives a court the power to strike out such a claim if it would be more convenient for a tribunal to deal with it, or to refer an issue relating to such a claim to an employment tribunal.
419.Employment tribunals have the specialist knowledge and procedures to handle claims relating to equality of terms and this section gives a court power to refer such issues to a tribunal. This section replaces similar provisions in previous legislation.