Farmah v Birmingham City Council
| Jurisdiction | UK Non-devolved |
| Neutral Citation | UKEAT/286/15 |
| Date | 2017 |
| Year | 2017 |
| Court | Employment Appeal Tribunal |
Industrial relations - Employment tribunals - Multiple claims - Equal pay claims included in single claim form - Permissible where claims based on same set of facts - Whether claims based on same facts irregular if included in form with non-complying claims - Whether discretion to waive irregularity - Relevant considerations where irregularity resulting in underpayment of tribunal fees -
In the first two cases, the 56 claimants, all but two of whom were women, were employed by the respondent council in different domestic and clerical jobs. They claimed equality of pay with, inter alia, male refuse collectors and drivers employed by the council, contending either that their jobs had been rated as equivalent or that they did equal work but were paid less than the men, in breach of the equality clause included in their contracts of employment by virtue of section 66 of the Equality Act 2010F1. In the other three cases, the claimants, who were mostly female employees employed by the respondents in different supermarket jobs, sought equal pay with men working in warehouses and distribution centres operated by the respondents. In each of the five cases a number of claimants, some doing different jobs, joined together to present their claims in a single claim form, as permitted under rule 9 of the Employment Tribunals Rules of Procedure 2013F2 where claims were “based on the same set of facts”, thereby benefiting from the lower tribunal fees available to multiple claimants. On preliminary hearings as to jurisdiction, an employment judge, considering the cases against the council, concluded that, in the first case, some claims included in one claim form were not based on the same set of facts and should be struck out, on the ground that the irregularity, in thereby failing to comply with rule 9 of the 2013 Rules, had led to an underpayment of tribunal fees and that insufficient care had been taken to ensure that the Rules were complied with, but that the inclusion in the same form of claims by 23 claimants with the same job title who relied on the same comparators was not irregular and that those claims could proceed. Similarly, in the second case, the judge concluded that two of the cases included in the claim form were based on the same facts and therefore within rule 9, while striking out the remaining cases. In the third case, in which claims by two women and one man who performed different roles were included in one claim form, an employment judge struck out the claims on the ground of a failure to comply with rule 9, as the claims were not based on the same set of facts. In the fourth case, which involved over 5,000 claimants, an employment judge refused to strike out the claims, deciding that, although it was not enough to satisfy the requirements of rule 9 that the claims were thematically linked as between retail and distribution and the claims forms were, therefore, irregular as not being based on the same set of facts, resulting in an underpayment of tribunal fees, the delays and additional costs involved in forcing the claimants to re-present their claims outweighed the loss of the tribunal fees. In the fifth case, an employment judge refused to strike out the claims, deciding that the inclusion in one form of claims by female workers in a female dominated group in store-based jobs who compared themselves with a male dominated group of warehousemen was not irregular, rejecting the contention that rule 9 was intended to impose a new stricter standard for joining claims on a single claim form.
On appeals by the claimants in the first, second and third cases and by the employers in the fourth and fifth cases, and on cross-appeals by the council against the decisions relating to the claims by claimants with the same job, as they had been included in the same forms as claims that were irregular, and by the claimants in the fourth case against the finding that their claim forms did not conform with rule 9—
Held, (1) that application of rule 9 of the Employment Tribunals Rules of Procedure 2013 required the tribunal to identify the complaints being made by the claimants, to establish the sets of facts necessary to establish those complaints and to compare them in order to determine whether they were the same and could be included in one claim form; that, in the present cases, the complaints were of alleged breaches of the sex equality clause included in the claimants’ contracts of employment by section 66 of the Equality Act 2010 where a person of one gender was employed on work equal to work done by a person of a different gender; that, for those purposes, a person’s work was equal if it was like work, or work rated as equivalent, or was of equal value, to the comparator’s work; that the core of such a complaint was the factual comparison between the work of the claimant and that of the comparator to establish whether it was equal in one of those three ways; and that claims would be based on different sets of facts, and not within the scope of rule 9, where female claimants were doing different jobs, or were comparing themselves with different male comparators, or where some women were claiming that their work was of equal value to men while others relied on jobs rated as equivalent, or where a man wanted to make a contingent claim seeking to compare his work with that of a female if her claim succeeded (post, paras 60, 61, 62, 65, 87–89, 121).
(2) That, while rule 9 of the Employment Tribunals Rules of Procedure 2013 provided that wrongly including claims by two or more claimants in the same claim was an irregularity within the meaning of rule 6 of the Rules, rule 6 provided that such an irregularity did not render the proceedings void but allowed the tribunal to “take such action as it considers just” which “may include” waiving the requirement or striking out the claim; and that, accordingly, the tribunal retained a discretion even in cases where the inclusion of claims by claimants within one claim form was an irregularity resulting in the avoidance of fees otherwise payable, though that would be a highly relevant factor in considering how the discretion should be exercised (post, paras 96, 97).
(3) Dismissing the claimants’ appeals and allowing the council’s cross-appeals in the first two cases, that the employment judge had been correct, in the first case, to conclude that claims presented on one form by claimants who were performing different jobs were not based on the same set of facts, for the purposes of rule 9 of the Employment Tribunals Rules of Procedure 2013, and were, therefore, to be treated as an irregularity falling under rule 6, but had been wrong to conclude that the inclusion within the same form of claims by 23 other claimants, who were all doing the same work, was not irregular, as the irregularity affected all the claimants; that, similarly, in the second case, the employment judge had erred in finding that there was no irregularity in respect of two claimants doing the same work being included with six others who were doing different jobs; that, as the decision in the first case to strike out the claims not based on the same facts demonstrated no error and the employment judge had not identified any relevant legal difference permitting a different exercise of the discretion under rule 6 in the case of the other 23 claims, that matter would be remitted for reconsideration; and that, in the second case, the employment judge’s decision that she would not in any event have struck out the claims based on the same facts was flawed and would be remitted for reconsideration (post, paras 93–95, 112–115).
(4) Dismissing the claimants’ appeal in the third case, and allowing the employer’s appeal and dismissing the claimants’ cross-appeal in the fourth case, that where claimants were carrying out different work it was not sufficient, for the purposes of rule 9 of the Employment Tribunals Rules of Procedure 2013, that the claims were thematically linked and asserted the same broad contentions; that, similarly, claim forms which included claims by men seeking to compare themselves with female claimants in the event that those claimants succeeded did not satisfy rule 9, as the men’s claims were not based on the same set of facts as those of the female claimants; that, in deciding to exercise discretion in favour of the claimants, the employment judge had omitted to address the question of whether there was any justifiable reason, given the cost benefits that flowed from including multiple claimants in one claim form, for the claimants’ advisers to act as they did; and that, since if that action was not excusable or justifiable it would be a factor favouring striking out the claims, the employment judged had erred in exercising the power under rule 6 to strike out or waive the requirement, and the matter would be remitted for reconsideration (post, paras 90, 92, 109, 110).
(5) Allowing the employer’s appeal in the fifth case, that the employment judge had erred in considering that it was sufficient to approach the facts at a high level of generality and in considering that, if the claims could be described as ones involving predominantly female retail staff claiming equal pay with predominantly male warehouse staff, then they were based on the same set of facts; that, on the facts as found by him in relation to the first claim form, he should have held that the inclusion in the form of the claims of claimants doing different jobs was irregular under...
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