Ashby and Others v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Slade |
| Judgment Date | 03 March 2011 |
| Neutral Citation | [2011] EWHC 424 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: 9BM03994 |
| Date | 03 March 2011 |
[2011] EWHC 424 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
AT BIRMINGHAM CIVIL JUSTICE CENTRE
Before: THE HONOURABLE MRS JUSTICE SLADE DBE
Case No: 9BM03994
Adrian Lynch QC and Simon Forshaw (instructed by BBH Solicitors) for the Claimants/Appellants
Paul Epstein QC and Louise Chudleigh (instructed by David Tatlow, Solicitor Birmingham City Council) for the Defendant/Respondent
Hearing date: 2 nd December 2010
Mrs Justice Slade:
Mrs Ashby and 13 others ('the Appellants') appeal from the decision of His Honour Judge Owen QC by judgment of 15 th October 2009 ('the judgment') to strike out the Appellants' claims against Birmingham City Council ('the Council') for damages for breach of contract. The breach was of the terms in their contracts of employment alleged to have been varied by operation of the equality clause implied by Section 2 of the Equal Pay Act 1970 as amended ('EqPA'). The Equal Pay Act 1970 is repealed and the relevant provisions re-enacted in the Equality Act 2010 with replacement of the words 'disposed of' in EqPA Section 2(3) with 'determined by' in Section 128. References in this judgment are to EqPA.
The Appellants are women, former home carers or home helpers, who were employed by the Council until dates between July 2003 and January 2006. They claim that the statutory equality clause operated to vary their contracts to give them an entitlement to bonuses and higher rates of basic pay paid to male comparators whom they allege were employed on work rated as equivalent or of equal value to theirs. They claim damages for breach of contract for the shortfall between their pay and that of their comparators for the period of six years up to the termination of their employment. They claim entitlement to a bonus as received by comparator gravediggers and a higher rate of basic pay as received by gardeners and gravediggers.
Pursuant to Section 2(1) claims for breach of terms of contracts of employment statutorily varied by operation of EqPA may be brought in an Employment Tribunal. Since such claims are claims for breach of contract they may also be brought in the High Court or the County Court. The different limitation periods for bringing claims in the Employment Tribunal and in the courts gave rise to the decision to bring proceedings in the County Court in these cases. A claim to an Employment Tribunal in respect of the contravention of a term modified or included by virtue of an equality clause must be made in a 'standard case', which these are, on or before six months after the last day on which the woman was employed in the employment.
The limitation period for bringing in the courts a breach of contract claim based on the operation of an equality clause statutorily implied by EqPA is that generally applicable to claims in contract pursuant to Limitation Act 1980 Section 2, six years from the date the cause of action accrued.
In order to comply with the judgment in Levez v TH Jennings (Harlow Pools) Ltd of the European Court of Justice, [1999] ICR 52 and of the Employment Appeal Tribunal, [2000] ICR 58, EqPA was amended to give successful claimants in proceedings before an Employment Tribunal equivalent rights to recover arrears of remuneration as in the ordinary courts. EqPA Sections 2(5) and 2ZB provide that successful claimants are entitled to recover a payment by way of remuneration in respect of a period starting six years before the day on which proceedings were instituted in the Employment Tribunal.
The Appellants have not commenced proceedings under the EqPA in the Employment Tribunal. In standard cases such as these, applying EqPA Section 2(4) and 2ZA, the time for doing so elapsed the day after six months after the last day on which each of the Appellants was in the employment of the Council. In cases in which the statutory grievance procedure was applicable and was invoked there would have been a possible three month extension. Subject to this, the time limit cannot be extended. It is not in dispute between the parties that an Employment Tribunal would have no jurisdiction to hear and determine an equal pay complaint presented out of time. By the date of the hearing before HH Judge Owen QC on 13 th October 2009 all the Appellants were too late for presenting complaints to an Employment Tribunal. The Employment Tribunal could only have dismissed their claims as being presented out of time.
The Appellants started proceedings for breach of contract in the County Court on 25 th March 2009. Their claims were all brought within the limitation period for claims to the County Court or the High Court.
Counsel very experienced in this area, Adrian Lynch QC and Simon Forshaw for the Appellants and Paul Epstein QC and Louise Chudleigh for the Council, did not know of equal pay claims being brought in the ordinary courts until recently. However after the conclusion of the hearing, counsel drew my attention to Abdulla and ors v Birmingham City Council [2010] EWHC 3303 (QB) a judgment of 17 th December 2010 of Colin Edelman QC sitting as a Deputy High Court Judge. The Judge dismissed an application by the Council to strike out under Section 2(3) claims in breach of contract based on the EqPA. As in this case, the claimants were seeking to recover in the courts the shortfall between their pay and that of a male comparator. Mr Lynch submitted that the judgment in Abdulla supports the Appellants' case.
Whilst other provisions in EqPA are relevant to the determination of this appeal, at its heart is the proper construction of Section 2(3) which provides:
"Where it appears to the court in which any proceedings are pending that a claim or counterclaim 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 counterclaim 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 application to strike out the claims before the County Court
The basis for the Council's application to strike out the Appellants' claims before the County Court was formulated by counsel in a case summary dated 30 th June 2009 as follows:
"7….all claims by Cs are considerably outside the limitation period for bringing a claim in the ET. They seek to overcome that limitation period by bringing these claims in the County Court. The question is whether this is permissible."
In the skeleton argument in support of the application to strike out the claims under EqPA Section 2(3), counsel stated at paragraph 25:
"In the present case the word 'conveniently' must be construed as requiring regard to be had, amongst other things, to the nature of the claim made, the specialist experience of the ET as compared to the court, the rules and procedures in the ET as compared to the court, and the interests of the administration of justice, including allotting an appropriate share of the Court's resources."
Counsel referred to the consequence of allowing these claims to continue in the County Court:
"39. If these C's are permitted to continue with these claims, it is highly probable that there will be numerous other claims brought against D, both with and without the benefit of conditional fee agreements, seeking to take advantage of the more generous six year limitation period in contract actions in the County Court as compared with the primary limitation period of six months in a standard case in the ET. Equally, it is not difficult to see that there could be other such claims brought in relation to other public bodies, including NHS Trusts."
I do not understand counsel for the Appellants to have doubted this proposition. Counsel for the Council correctly anticipated the argument of the Appellants resisting their application to strike out the claims.
"41. No doubt the main argument C's will use is that it cannot be 'convenient' for their claims to be disposed of in the ET since they are now out of time."
A statement from Anthony McKeever, solicitor for the Appellants, was before the County Court. At paragraph 13 he said:
"There is a suggestion that the Claimants could or should have brought proceedings within the employment tribunal time limits and that this county court action is an abuse of process. Each of the 14 Claimants was unaware of the (alleged) disparity in pay structures between men and women until 2008, as set out in their witness statements."
Each of the Appellants made statements to similar effect.
In a skeleton argument for the County Court, counsel then acting for the Appellants wrote at paragraph 24:
" The Overriding Point
24. Since the employment tribunal lacks a jurisdiction to hear these claims, a breach of contract claim in the county court is the only jurisdiction available to the Claimants. This is not a situation where the pros and cons of the respective venues can be sensibly balanced against each other. There is only one venue available to the Claimants – the county court – so ipso facto that must be the most convenient venue in which to dispose of the claims."
By their Defence, the Council admitted that the Appellants' jobs of home help and home care assistant had been rated higher than that of grave digger. The Council denied that the Appellants were employed on work of equal value to those of gravedigger or gardener.
The Council contended that the difference in entitlement...
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Abdulla and Others v Birmingham City Council
...made in the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and on the decision of Slade J in Ashby v Birmingham City Council [2011] EWHC 424 (QB), [2012] ICR 1, in which she applied the observations to claims materially similar to the 23 In the Spiliada case ......
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Abdulla and Others v Birmingham City Council
... ... 23 In support of his submissions, he referred me to the decision of HHJ Owen QC in Ashby & Others v. Birmingham City Council , 13 October 2009. In that case, which was another equal pay claim, HHJ Owen QC acceded to the application to strike out the claimants’ claims, notwithstanding that they would be out of time for presentation of a complaint to the Employment Tribunal. He ... ...
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Abdulla and Others v Birmingham City Council
...reasonably. 23 Authority contrary to the approach taken by the deputy judge in this case was cited to him. In 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......