Ms S Brierley & Others v Asda Stores Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Sir Colin Rimer,Lord Justice Longmore |
| Judgment Date | 17 January 2019 |
| Neutral Citation | [2019] EWCA Civ 8 |
| Docket Number | Case Nos: A2/2017/1913, 1914 & 1915/EATRF & A2/2017/2005/EATRF |
| Court | Court of Appeal (Civil Division) |
| Date | 17 January 2019 |
and
[2019] EWCA Civ 8
Lord Justice Longmore
Lord Justice Bean
and
Sir Colin Rimer
Case Nos: A2/2017/1913, 1914 & 1915/EATRF & A2/2017/2005/EATRF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HONOURABLE MR JUSTICE LEWIS
UKEAT/0059/16
UKEAT/0227/16
UKEAT/0009/16
UKEAT/0289/15
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Short QC, Naomi Cunningham and Keira Gore (instructed by Leigh Day) for the Claimants
Christopher Jeans QC and Patrick Halliday (instructed by Gibson, Dunn and Crutcher LLP) for Asda Stores Ltd
Naomi Ellenbogen QC and Dale Martin (instructed by Womble Bond Dickinson LLP Newcastle) for Sainsbury's Supermarkets Ltd
Hearing dates: 23–24 October 2018
Approved Judgment
These are appeals from a decision of Lewis J in the Employment Appeal Tribunal (“EAT”) (reported under the name Farmah v Birmingham City Council [2018] ICR 921, although the appeals concerning Birmingham City Council were compromised before the hearing in this court) concern claims for equal pay. The cases argued before us involve claims brought by (for the most part) female employees carrying out different jobs in supermarkets who say they are being paid less than men carrying out work of equal value in other roles in warehouses or distribution centres operated by the same supermarket chain. A number of claimants included their claims within a single claim form ET1. The number of claimants on each ET1 varied from 5 to no less than 1569. The case of Brierley v Asda involved 22 multiple claims presented in respect of 5497 claimants. The number of differing job roles performed by the various claimants within a single form ET1 varied from 8 to 175.
In 2013 fees were introduced for the issue of claims in the employment tribunals. The fees for issuing an ET1 involving multiple claimants were much lower, particularly with large numbers involved, than the fees that would have been payable if each claimant issued an individual form. The decision of the Supreme Court in R (UNISON) v Lord Chancellor given on 26 July 2017 ( [2017] UKSC 51) held the fees regime to be unlawful, but this occurred after the decisions under appeal.
Rule 9 of the Employment Tribunals Rules of Procedure 2013 provides that two or more claimants “may make their claims on the same claim form if their claims are based on the same set of facts”. The employers contend that claimants who are doing different jobs are not basing their claims on the same set of facts and therefore cannot join their claims in a single claim form.
The claimants dispute this but argue that insofar as the joinder in the same claim form of claimants doing different jobs was irregular, the employment tribunal (“ET”) was right to exercise (or should have exercised) its discretion under Rule 6 to waive the irregularity.
In Brierley v Asda Stores Ltd Regional Employment Judge (“REJ”) Robertson held that the issue of the multiple claims was irregular but waived the irregularity. In respect of the much smaller group of claimants in Fenton v Asda Stores Ltd he held that the presentation of the claims was irregular, refused to waive the irregularity and struck the claims out. In Ahmed v Sainsburys Supermarkets Ltd EJ (as he then was: now REJ) Pirani held that there was no irregularity and accordingly allowed the claims to proceed: the question of waiver under Rule 6 accordingly did not arise.
In the EAT Lewis J held that claims presented on a single form by claimants performing different jobs were not based on the same set of facts for the purposes of Rule 9 and were therefore to be treated as an irregularity; and that the approach to waiver taken by the tribunal in Brierley v Asda had been flawed. He ordered the Brierley v Asda and Ahmed v Sainsburys cases to be remitted to the respective tribunals and upheld the striking out order in Fenton v Asda. Permission to appeal to this court was refused by the judge but granted by Underhill LJ on 10 October 2017.
The Employment Tribunal Rules
Rule 2 of the Rules sets out the overriding objective of the Rules in the following terms:
“ Overriding objective
2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—
(a) ensuring that the parties are on an equal footing;
(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;
(c) avoiding unnecessary formality and seeking flexibility in the proceedings;
(d) avoiding delay, so far as compatible with proper consideration of the issues; and
(e) saving expense.
A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”
Rule 6 of the Rules deals with irregularities and non-compliance with the Rules and with orders of the tribunal and provides:
“ Irregularities and non-compliance
6. A failure to comply with any provision of these Rules (except rule 8(1), 16(1), 23, or 25) or any order of the Tribunal (except for an order under rules 38 or 39) does not of itself render void the proceedings or any step taken in the proceedings. In the case of such non-compliance, the Tribunal may take such action as it considers just, which may include all or any of the following –
(a) waiving or varying the requirement;
(b) striking out the claim or response, in whole or in part, in accordance with rule 37;
(c) barring or restricting a party's participation in proceedings;
(d) awarding costs in accordance with rules 74 to 84.”
The Rules contain provisions setting out how a person may start, or respond, to a claim. Rule 8 provides, so far as material:
“ Presenting the Claim
8 (1) A claim shall be started by presenting a completed claim form (using a prescribed form) in accordance with any practice direction made under regulation 11 which supplements this rule.”
Rule 9 provides:
“ Multiple Claimants
9. Two or more claimants may make their claims on the same claim form if their claims are based on the same set of facts. Where two or more claimants wrongly include claims on the same claim form, this shall be treated as an irregularity falling under rule 6.”
Unless the claim is rejected, a copy is sent to each respondent together with a prescribed response form explaining, among other things, how to submit a response to a claim: see Rule 15. Rule 16 provides:
“16. Response
(1) The response shall be on a prescribed form and presented to the tribunal office within 28 days of the date that the copy of the claim form was sent by the Tribunal.
(2) A response form may include the response of more than one respondent if they are responding to a single claim and either they all resist the claim on the same grounds or they do not resist the claim.
(3) A response form may include the response to more than one claim if the claims are based on the same set of facts and either the respondent resists all of the claims on the same grounds or the respondent does not resist the claims.”
Rules 29 to 40 deal with specific aspects of case management orders and other powers. Material rules for present purposes provide:
“29. Case Management Orders
The Tribunal may at any stage of the proceedings, on its own initiative or on application make a case management order. … [T]he particular powers identified in the following rules do not restrict that general power. A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made.
…
36. Lead cases
(1) Where a Tribunal considers that two or more claims give rise to common or related issues of fact or law, the Tribunal or the President may make an order specifying one or more of those claims as a lead case and staying, or in Scotland sisting, the other claims (“the related cases”).
…
37. Striking out
(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—
(a) that it is scandalous or vexatious or has no reasonable prospect of success;
(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;
(c) for non-compliance with any of these Rules or with an order of the Tribunal;
(d) that it has not been actively pursued;
(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).
(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.
(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.”
The history of Rule 9
Until 2001 each claimant in an ET was required to present a separate form for what was then called an originating application. In 2001, Rule 1(2) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (SI 2001/11/71)...
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