Equality Act 2010 claimants (formerly claiming under Equal Pay Act 1970 and Sex Discrimination Act) can choose to bring claims in court or the employment tribunal.

Birmingham City Council v Abdulla & Ors [2011] EWCA Civ 1412

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The APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION with MR COLIN EDELMAN QC sitting as a Deputy High Court Judge was heard in the Court of Appeal by LORD JUSTICE MUMMERY LORD JUSTICE DAVIS and DAME JANET SMITH

Mr Colin Edelman QC a Deputy Judge in the High Court dismissed an application by Birmingham City Council under s.2(3) of the Equal Pay Act 1970 (the 1970 Act) for a declaration that the court had no jurisdiction to hear equal pay claims brought against it by Mrs Abdulla and 174 other Claimants. The women claimants were council employees.

Permission to appeal was granted by Hooper LJ at a renewed oral hearing on 18 May 2011, Rimer LJ having refused permission on the paper application. New points were raised in the appeal in addition to the usual ones such as the construction of the 1970 Act, the meaning of "pay", selecting the appropriate comparator, and to the application of the "genuine material factor" (GMF) defence. The mechanics of the equality clause (by s.2(1) implied into contracts of employment), limitation periods, remedies for breach of the equality clause, jusrisdictions to hear equal pay and how claims under the 1970 Act fit with claims under the Sex Discrimination Act 1975.

The Equality Act 2010 replaced earlier legislation on equal pay and sex discrimination but cases brought under the 1970 Act stil apply.

Owing to difficulties with the 6 month limitation period in the ET the equality claims were exceptionally brought in the ordinary courts where the 6 years limit for bringing a case for pay arrears applies (Limitation Act 1980 for instituting breach of contract proceedings)

Authorities quoted:
Ashby v. Birmingham CC [2011] EWHC 424 (QB); [2011] IRLR 473 HHJ Owen QC, sitting in the County Court, accepted the Council's arguments on the construction and application of s.2(3) and struck out the equal pay claims saying that the expiry of time for presenting the claims to the ET was an irrelevant factor.
Spiliada Maritime Corporation v. Cansulex Ltd [1987] 1 AC 460 - "... the relevance of the Claimants' reasons for failing to bring proceedings in the other jurisdiction, in these cases the ET. It was said in Spiliada, at pp. 483 E to 484 B per Lord Goff of Chieveley, in relation to the application of the conflict of laws principle of forum non conveniens that, where there is some other jurisdiction apart from England which is more appropriate for the trial of the action, but time has expired for bringing proceedings in that jurisdiction, a stay may be granted to prevent proceedings from being brought in England, where the claim is not time-barred, if practical justice requires it. Practical justice requires it, if the Claimant has acted unreasonably in failing to bring proceedings in that other jurisdiction". "It is argued that the same principle should be applied as regards the two domestic jurisdictions of the ordinary courts and the ET. It could hardly be the case that the Claimants can simply ignore the time limits laid down for an ET equal pay claim. Those time limits were intended as safeguards for defendants to equal pay claims."
"if proceedings are started within the time permitted by the Statute of Limitations and they are not an abuse of process, they will not as a general rule be struck out because, for example, of a procedural mistake": - Restick v. Crickmore [1994] 1 WLR 420 at 427E-G per Stuart-Smith LJ."

The Council is applying for permission to appeal to the Supreme Court.

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