Abdulla and Others v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Reed,Lord Wilson,Lord Sumption,Lord Carnwath |
| Judgment Date | 24 October 2012 |
| Neutral Citation | [2012] UKSC 47 |
| Date | 24 October 2012 |
| Court | Supreme Court |
[2012] UKSC 47
Lady Hale
Lord Wilson
Lord Sumption
Lord Reed
Lord Carnwath
Appellant
Paul Epstein QC
Louise Chudleigh
Nathaniel Caiden
(Instructed by
Birmingham City Council
Legal and Democratic
Services)
Respondent
Andrew Short QC
Naomi Ling
(Instructed by Leigh Day
& Co)
Heard on 11 July 2012
Lord Wilson (with whom Lady Hale and Lord Reed agree)
Birmingham City Council ("Birmingham") appeals against the order of the Court of Appeal (Mummery and Davis LJJ and Dame Janet Smith) dated 29 November 2011, whereby it dismissed Birmingham's appeal against the order of Mr Colin Edelman QC, sitting as a deputy judge of the High Court, Queen's Bench Division, dated 17 December 2010. The deputy judge had dismissed Birmingham's application for a direction that the claims made against it by 174 claimants, joined as parties to the single action, should be struck out.
The claimants allege that they are former employees of Birmingham. All except four of them are women. The claims, which were issued in the High Court on 30 July 2010, were founded on an alleged breach of the "equality clause" which, by section 1(1) of the Equal Pay Act 1970 ("the Act"), as substituted by section 8(1) of the Sex Discrimination Act 1975, was deemed to have been included in their contracts of employment. On 1 October 2010 the Act was repealed; and the provisions of it which this appeal requires the court to consider were replaced by provisions to similar effect in Chapter 3 of Part 5, and in particular in Chapter 4 of Part 9, of the Equality Act 2010.
Under the Act an equality clause had effect in six different situations specified in section 1(2) at (a) to (c). The claimants allege that the second situation, specified at (b), applied to them, namely "where the woman is employed on work rated as equivalent with that of a man in the same employment". Although section 1(1) and (2) identified the contracts of women as those in which an equality clause was to be included, the provisions applied equally to the contracts of men where the situation was converse: section 1(13). Hence the claims of the four men; but, in what follows, it will be convenient to refer only to the claims of the women. Section 1(2)(b), as substituted by section 8(1) of the 1975 Act, proceeded to provide that, where the second situation applied, the effect of the equality clause was that:
"(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 claimants allege that Birmingham employed them on work rated as equivalent with that of certain men in the same employment pursuant to the National Joint Council for Local Authorities' Services (West Midlands Provincial Council) Manual Workers Handbook 1987, known as the Blue Book, and to a Job Evaluation Scheme referred to in it; but that their contracts did not provide for the payment of the substantial bonuses and other additional payments for which the contracts of the male comparators provided. They therefore claim sums equivalent to such payments pursuant to the terms of their contracts provided for by section 1(2)(b) (i) and (ii) of the Act.
Birmingham has not yet filed a defence to the claims. It does not allege that the claimants are out of time in bringing such claims in the High Court: their claims are brought within six years of the date on which their alleged causes of action accrued and so fall within the time set by section 5 of the Limitation Act 1980. Whether Birmingham will seek to dispute that it employed the claimants or, if so, that their work was rated as equivalent with that of the male comparators and whether it will seek to prove pursuant to section 1(3) of the Act, as substituted by regulation 2(2) of the Equal Pay (Amendment) Regulations 1983 ( SI 1983/1794), that any variation between the contracts was genuinely due to a material factor other than the difference of sex are all questions which remain to be seen. The claimants suggest that, were their claims to go forward, the real battle would lie in the quantification of their claims, which certainly appears complex, rather than in the establishment of Birmingham's substantive liability to them.
Were it not for one feature, the claims could have been presented by way of complaint to an employment tribunal: section 2(1) of the Act, as amended by paragraph 2 of Schedule 1 to the Sex Discrimination Act 1975 and section 1(2)(a) of the Employment Rights (Dispute Resolution) Act 1998. Such claims are usually brought in the tribunal, which offers to litigants many advantages not on offer in a court, including greater expertise in their determination (even, in a specified situation, provision to them free of charge of an expert report under section 2A(1)(b) of the Act, as inserted by regulation 3(1) of the 1983 Regulations), less cost and, in principle, faster resolution. Indeed, in the course of giving the only substantive judgment in the Court of Appeal, Mummery LJ, whose experience of this area of the law is unrivalled, observed that he had never previously encountered a claim under the Act which had been presented to a court rather than the tribunal.
The feature which precludes the claimants from presenting their claims to the tribunal is that they would be out of time for doing so. They concede that Birmingham ceased to employ them on various dates between August 2004 and November 2008. Section 2(4)(a) of the Act provided that the tribunal could not determine a complaint in respect of the contravention of a term modified or included by virtue of an equality clause unless it was presented on or before "the qualifying date"; and section 2ZA(3) provided that in a "standard case" the qualifying date was the date falling six months after the last day on which the woman was employed in the employment. It is agreed that each of the present claims is a "standard case", as defined in section 2ZA(2). The period of six months was extended to nine months in specified circumstances but, even had such existed, the extension would not have enabled these claims to be presented to the tribunal.
Birmingham's application to the court for a direction that the claims be struck out has been brought pursuant to section 2(3) of the Act. The subsection, as amended by section 1(2)(a) of the 1998 Act, provided as follows:
"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."
It will be convenient to describe the provision prior to the semi-colon as the first part of the subsection and the provision following it as the second part.
It was Birmingham's case before the deputy judge that the claims should have been presented to the tribunal; that the reasons why each claimant had failed to present her claim in time to the tribunal were irrelevant; that the claims "could more conveniently be disposed of" by the tribunal notwithstanding that such disposal would be by way of immediate dismissal for want of presentation in time; and that in those circumstances the first part of section 2(3) conferred on him a discretion to strike out the claims which he should proceed to exercise.
In dismissing the application the deputy judge expressed himself in categorical terms, as follows:
"On the true construction of section 2(3), it cannot be more convenient for a claim to be disposed of separately by an employment tribunal in circumstances where the…tribunal could not determine the claim on its merits but would be bound to refuse jurisdiction to deal with the claim because it was time barred."
He added that, had his conclusion about the meaning of the word "convenient" been otherwise, he would have held that to strike out the claims in such circumstances would be to offend against the "principle of equivalence" under EU law, which I will address in para 32 below. Finally, said the deputy judge, he would have declined to exercise any discretion which might have arisen under the first part of the subsection.
But in the Court of Appeal (as it does in this court) Birmingham put its case differently. By that stage it had conceded that the reasons why each claimant had failed to present her claim in time to the tribunal were relevant. It invited the court to rule that, except where a claimant could provide a reasonable explanation for her failure to do so, her claim should be struck out; and it sought an order that its application be remitted to the High Court for inquiry into the identity of such claimants (of whom it conceded that there would be some) as, by reference to such an exception, could...
To continue reading
Request your trial
-
Morris v Ryan
...give rise to the claim’. This observation mirrors the view expressed by the UK Supreme Court in Abdulla v Birmingham City Council [2013] 1 All E.R. 649 where at para. 41 Lord Sumption stated: - ‘Limitation in English law is generally procedural. But it is not a technicality, nor is it neces......
-
Mr A M Coletta v Bath Hill Court (Bournemouth) Property Management Ltd
...for these purposes (and see, in the equal pay context, per Lord Sumption at paragraph 42 Abdulla and ors v Birmingham City Council [2012] ICR 1419 SC); back-pay provisions were not the same thing as a period of As for the Explanatory Memorandum relating to the 2014 Regulations, at most that......
-
Bath Hill Court (Bournemouth) Management Company Ltd v Anthony Coletta
...as going to jurisdiction; and they are probably binding at this level. But Ms Criddle referred us to Abdulla v Birmingham City Council [2012] UKSC 47, [2012] ICR 1419, where Lord Sumption expressed doubts whether that was correct as regards the substantially similar language of section 2 (4......
-
Lawrence Ewan McGaughey v Universities Superannuation Scheme Ltd
...that a member could also bring a claim in the civil courts (the High Court or the County Court): see Abdulla v Birmingham City Council [2012] ICR 1419. The difference between a claim before the Employment Tribunal and a claim in the civil courts is that the former is a costs neutral jurisdi......
-
UK Employment Law Round-up Volume 1, Issue 2
...this issue... Volume 1 - Issue 2 2 dentons.com In October 2012, in the “landmark case” of Birmingham City Council v. Abdullah and others [2012] UKSC 47, the Supreme Court judges held that more than 170 former Birmingham City Council employees could launch pay equality compensation claims in......