Birmingham City Council v Abdulla & Ors

Factual and Procedural Background

Approximately 174 former employees (“Plaintiffs”) brought High Court proceedings against their ex-employer, Company A, on 30 July 2010. They allege breach of the statutory equality clause implied into their contracts by the Equal Pay Act 1970 (“the Act”), asserting that their work had been rated as equivalent to that of male comparators yet they did not receive the same bonuses and other payments. Company A has not yet filed a defence.

Because each Plaintiff left Company A between August 2004 and November 2008, any complaint to an employment tribunal would now be outside the six-month time limit laid down by sections 2(4) and 2ZA of the Act. Company A therefore applied in the High Court to strike out the claims under section 2(3) of the Act on the basis that they “could more conveniently be disposed of” by an employment tribunal.

Judge Edelman (High Court, 17 December 2010) refused the application. The Court of Appeal (Judges Mummery, Davis and Smith, 29 November 2011) dismissed Company A’s appeal. Company A then appealed to the United Kingdom Supreme Court. The majority (Judges Wilson, Hale and Reed) dismissed the appeal; Judges Sumption and Carnwath dissented.

Legal Issues Presented

1. Whether a court may strike out equal-pay claims under section 2(3) of the Act on the ground that they “could more conveniently be disposed of” by an employment tribunal, even though the tribunal would be obliged to dismiss them as time-barred.
2. Whether striking out such claims would offend against the EU principle of equivalence.

Arguments of the Parties

Appellant (Company A)

• The Act contemplated that equal-pay disputes should normally be resolved by employment tribunals; therefore the present claims should be struck out unless a Plaintiff can provide a reasonable explanation for not having filed in time.
• Under section 2(3) it is “more convenient” for a tribunal to dispose of the claims even if the result is immediate dismissal for limitation.
• Relied on forum non conveniens principles in Spiliada Maritime Corporation v Cansulex Ltd and on Ashby v Birmingham City Council.

Plaintiffs

• A claim cannot be “more conveniently” disposed of in a forum that lacks jurisdiction on the merits; therefore section 2(3) cannot apply where the tribunal must dismiss as out of time.
• Striking out would, in any event, breach the EU principle of equivalence because it would impose a procedural hurdle not faced by similar domestic contractual actions.

Table of Precedents Cited

Court's Reasoning and Analysis

Majority (Judges Wilson, Hale, Reed):

• The phrase “more conveniently be disposed of” in section 2(3) refers to a practical forum for deciding the merits. A forum that must dismiss on limitation grounds cannot be “more convenient”.
• Historical context of the Act shows Parliament intended concurrent jurisdiction; the strict six-month tribunal limit was tolerated partly because claims could still be brought in court within six years.
• Importing tribunal limitation into court proceedings would effectively shorten the court’s statutory limitation period and re-write the Act.
• The Spiliada doctrine deals with international forum choice and is irrelevant to a statutory allocation between domestic forums.
• EU principle of equivalence would not be breached even if section 2(3) were read as Company A suggested, but that question did not arise because the strike-out power was never engaged.
• Accordingly, a claim can “never more conveniently be disposed of by [a] tribunal” if the tribunal would be time-barred.

Dissent (Judges Sumption, Carnwath):

• Section 2(3) should be applied in light of the legislative policy that employers be protected from stale equal-pay claims.
• “Convenient” imports broader “interests of justice” similar to forum non conveniens. Tribunal dismissal on limitation can be a legitimate “disposal”.
• The court should weigh multiple factors (reason for delay, evidential prejudice, potential costs) and may strike out where Plaintiffs unreasonably failed to sue in time.
• Would remit the case for a fact-specific inquiry.

Holding and Implications

Holding: APPEAL DISMISSED. Section 2(3) does not permit striking out an equal-pay claim in court if the employment tribunal would be obliged to reject it as out of time.

Implications:

• Former employees who miss the tribunal’s six-month limit may still sue in court within the ordinary six-year limitation period.
• Clarifies that “convenience” in section 2(3) is confined to forums capable of determining the merits, limiting employers’ ability to invoke tribunal time-bars as a defence in court.
• Leaves open the court’s inherent power to strike out for abuse of process and to adjust costs where a claimant could reasonably have proceeded in the tribunal.
• Majority invites legislative reconsideration of tribunal limitation rules to align them with practical case-management realities.