Abdulla and Others v Birmingham City Council
| Jurisdiction | England & Wales |
| Judgment Date | 17 December 2010 |
| Neutral Citation | [2010] EWHC 3303 (QB) |
| Docket Number | Case No: HQ10X02926 |
| Court | Queen's Bench Division |
| Date | 17 December 2010 |
[2010] EWHC 3303 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before Mr C Edelman QC
(Sitting as a Deputy Judge of the Queen's Bench Division)
Case No: HQ10X02926
Paul Epstein QC and Louise Chudleigh (instructed by Birmingham City Council Legal Services Division) for the Defendant
Andrew Short QC and Naomi Ling (instructed by Leigh Day & Co) for the Claimants
Hearing date: 3 rd December 2010
Introduction
The application with which I have to deal is made by the Defendant pursuant to an Application Notice dated 19 August 2010. The Defendant's application is for:
“An order containing a declaration that the court has no jurisdiction or should not exercise its jurisdiction which it may have in accordance with CPR Rule 11.”
The application is supported by the witness statement of Sally Jean Watts, who is employed by the Defendant as a Senior Solicitor. That Witness Statement explains that the application to contest the jurisdiction of the Court is made under Section 2(3) of the Equal Pay Act 1970 (“ EPA”), which is the relevant statutory provision for the purposes of these claims.
Section 2(3) of the EPA provides as follows:
“(3) Where it appears to the Court in which any proceedings are pending that a claim or counter-claim in respect of the operation of an equality clause could more conveniently be disposed of separately by an employment tribunal, the court may direct that the claim or counter-claim shall be struck out; and (without prejudice to the foregoing) where in proceedings before any court a question arises as to the operation of an equality clause, the court may on the application of any party to the proceedings or otherwise refer that question, or direct it to be referred by a party to the proceedings, to an employment tribunal for determination by the tribunal, and may stay or sist the proceedings in the meantime.”
The way in which the Defendant's case was put before me is that I should refuse to accept jurisdiction for the Court on this claim on the grounds that it could more conveniently be disposed of separately by an Employment Tribunal and that accordingly I should strike out the claim.
Background
There are 174 Claimants in this action. They are former employees of the Defendant. With four exceptions, they are women. They bring claims alleging a failure on the Defendant's part to pay them in accordance with their contracts of employment as varied by the operation of the equality clause implied into those contracts by Section 1 of the EPA. Sub-section (1) of that Section provides as follows:
“(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one.”
It is alleged by the Claimants that they were each employed in a role that had been graded in accordance with the Job Evaluation Scheme included within the collectively agreed terms and conditions known as “The National Joint Council for Local Authorities’ Services (Manual Workers) Handbook” (“the Blue Book”). It is further alleged that they were paid less than comparators employed in roles which were rated as equivalent in the Blue Book. As regards work “rated as equivalent” Section 1(2)(b) of the EPA provides as follows:
“(2) An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (the “woman's contract”), and has the effect that …
(b) where the woman is employed on work rated as equivalent with that of a man in the same employment —
(i) if (apart from the equality clause) any term of the woman's contract determined by the rating of the work is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and
(ii) if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed and determined by the rating of the work, the woman's contract shall be treated as including such a term.”
The operation of the equality clause is qualified by Section 1(3) of the EPA which provides, insofar as material, as follows:
“(3) An equality clause falling within sub-section (2) … (b) … above shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor —
(a) in the case of an equality clause falling within sub-section (2) … (b) above, must be a material difference between the woman's case and the man's …”
The evidence provided to me for the purposes of my consideration of this Application included the Witness Statement of Ms Watts to which I have referred, the Witness Statement of Christopher Benson, a partner at Leigh Day & Co., solicitors for the Claimants, and Witness Statements from the following six sample Claimants:
(1) Annette Poole who worked for the Defendant as a Lunchtime Supervisor at a school from May 1998 until July 2007;
(2) Linda Manders who worked for the Defendant as a Lunchtime Supervisor at a school between April 1998 and May 2008;
(3) Barbara Drinkwater who worked for the Defendant as a Catering Supervisor for about 30 years until May 2005;
(4) Susan Fisher who worked for the Defendant as a General Assistant for about 23 years until February 2007;
(5) Joan Clulow who worked for Defendant as a Home Care Assistant between 1980 and April 2006;
(6) Geraldine Pearson who was employed by the Defendant as a Home Care Assistant between 1998 and August 2005.
The above Claimants refer to having heard from colleagues of their receipt of equal pay compensation payments from the Defendant.
The Claim Form in this action was issued on 30 July 2010. The list of Claimants appended to the Particulars of Claim reveals “End Dates” (i.e. termination of employment dates) for the Claimants which range from 1 August 2004 to 14 November 2008.
A complaint about the contravention of an equality clause can be made to an Employment Tribunal. Section 2(1) of the EPA provides as follows:
“(1) Any claim in respect of the contravention of a term modified or included by way of an equality clause, including a claim for arrears of remuneration or damages in respect of the contravention, may be presented by way of a complaint to an Employment Tribunal.”
At the time of the enactment of the original form of Section 2(1), at which time what are now known as Employment Tribunals were known as Industrial Tribunals, Industrial Tribunals had no jurisdiction to deal with contractual claims. The jurisdiction of Industrial Tribunals to deal with contractual claims was not conferred until 1994, under the Industrial Tribunals Extension of Jurisdiction (England and Wales) Order 1994, (SI 1994/1623) (“the 1994 Order”).
Time Limits
Section 2(4) of the EPA provides, insofar as is material, as follows:
“(4) No determination may be made by an Employment Tribunal in the following proceedings —
(a) on a complaint under sub-section (1) above …
unless the proceedings are instituted on or before the qualifying date (determined in accordance with Section 2ZA below).”
Section 2ZA defines the qualifying date for four types of case, which can be summarised for the purposes of this application as follows:
(i) A “concealment case”, where a relevant fact has been concealed from the woman;
(ii) A “disability case”, where the woman was under a disability at any time during the six months after the last day on which she was employed in the employment;
(iii) A “stable employment case”, where there is a stable employment relationship between the woman and the employer notwithstanding that there are gaps in the continuity of the employment;
(iv) A “standard case”, which is none of the above.
Section 2ZA(3) provides that in a standard case, the qualifying date is six months after the last day on which the woman was employed in the employment. Under Section 2ZA(4)-(7), provision is made for a similar six month period following on from the ending of the stable employment relationship, the date on which the concealment was or could with reasonable diligence been discovered and the cessation of the disability. There is no provision conferring on an Employment Tribunal any discretion to extend the period of six months for the presentation of a complaint beyond the time limits specified in Sections 2(4) and 2ZA.
Section 2(5) provides for a time limit for an award of arrears of remuneration or damages. It provides as follows:
“(5) A woman shall not be entitled, in proceedings brought in respect of a contravention of a term modified or included by virtue of an equality clause (including proceedings before an Employment Tribunal), to be awarded any payment by way of arrears of remuneration or damages —
(a) in proceedings in England and Wales, in respect of a time earlier than the arrears date (determined in accordance with Section 2ZB below).”
Section 2ZB provides for the “arrears date” to be six years before the day on which the proceedings were instituted, save in the case of concealment or disability for which special provision is made.
Sections 2(5) and 2ZB therefore put an equal pay claimant in a similar position to a claimant in an ordinary breach of contract case claiming arrears of remuneration or damages, in that there is a six year limitation period, subject to cases of concealment or disability.
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