Ashby & Ors v Birmingham City Council

Factual and Procedural Background

The Appellants, Mrs Ashby and 13 others, were female former home carers or home helpers employed by Company A until dates between July 2003 and January 2006. They claimed that their contracts of employment were varied by operation of the equality clause implied by Section 2 of the Equal Pay Act 1970 (EqPA), entitling them to bonuses and higher basic pay equivalent to male comparators employed on work rated as equivalent or of equal value. The Appellants sought damages for breach of contract for pay shortfalls over six years prior to termination of employment. Their claims included entitlement to bonuses received by comparator gravediggers and higher pay rates of gardeners and gravediggers.

The Appellants brought breach of contract claims in the County Court on 25th March 2009, within the six-year limitation period applicable to contractual claims under the Limitation Act 1980, rather than in the Employment Tribunal, which has a six-month limitation period for such claims. The Council applied to strike out the claims under EqPA Section 2(3), contending that the claims should have been brought in the Employment Tribunal and that the County Court lacked jurisdiction or that the claims were an abuse of process due to the time bar in the Employment Tribunal.

His Honour Judge Owen QC struck out the claims on 15th October 2009, concluding that the claims would be more conveniently disposed of by the Employment Tribunal, notwithstanding the limitation bar there, and that the County Court proceedings constituted an abuse of process. The Appellants appealed this decision.

Legal Issues Presented

1. Whether the County Court has jurisdiction to hear breach of contract claims based on the equality clause implied by the Equal Pay Act 1970, given the concurrent jurisdiction of Employment Tribunals.
2. The proper construction and application of Section 2(3) of the Equal Pay Act 1970 concerning the court's discretion to strike out claims that could more conveniently be disposed of by an Employment Tribunal.
3. Whether the limitation period applicable to claims in the Employment Tribunal affects the convenience or appropriateness of that forum under Section 2(3).
4. Whether the County Court's striking out of the Appellants' claims constituted an abuse of process.
5. The extent to which the court should consider the particular facts and reasons why the Appellants did not bring timely claims in the Employment Tribunal when exercising discretion under Section 2(3).

Arguments of the Parties

Appellants' Arguments

• Equal pay claims modify contracts of employment and thus fall within the jurisdiction of the County Court and High Court as well as Employment Tribunals.
• EqPA expressly allows concurrent jurisdiction; claimants may choose to bring claims in either forum.
• The limitation period for claims in courts remains six years, unlike the six-month period in Employment Tribunals, and this difference was known to the legislature.
• The discretion under Section 2(3) to strike out claims should not be exercised simply because the Employment Tribunal would be time barred from hearing the claim.
• The court should consider the convenience of the particular case and not apply a general objective test based on the nature of equal pay claims.
• The Appellants were unaware of the pay disparity until 2008, explaining their failure to bring timely Employment Tribunal claims.
• Citing case law, they argued that the court should not strike out claims on the basis that they were not brought in the Employment Tribunal, especially where that forum would dismiss claims as out of time.

Respondent's Arguments (Company A)

• Equal pay claims are most conveniently and appropriately dealt with by Employment Tribunals, which have specialist procedures, judges, and expertise.
• The claims before the County Court are essentially equal pay claims and should be struck out under Section 2(3) because the Employment Tribunal is the proper forum.
• The limitation period in the Employment Tribunal cannot be circumvented by bringing claims in the courts.
• The court should apply an objective test based on the nature of the claims and the convenience of the forum generally for equal pay matters.
• Reliance on forum non conveniens principles and case law such as Spiliada Maritime Corporation v Cansulex Ltd and Banco Atlantico SA v The British Bank of the Middle East to support striking out claims where a more appropriate forum exists.
• Challenged the Appellants' reasons for delay and argued that their evidence was insufficient to justify ignoring the Employment Tribunal limitation period.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the jurisdictional framework under the Equal Pay Act 1970, acknowledging that equal pay claims are contractual in nature and may be brought either in Employment Tribunals or in ordinary courts. The court emphasised that Section 2(3) of the EqPA confers a discretion on courts to strike out claims that could more conveniently be disposed of by an Employment Tribunal but that this discretion requires a fact-specific inquiry into convenience, not a broad objective assumption based on the general nature of equal pay claims.

The court found that the learned Judge below erred by applying an overly general and objective test, focusing on the usual expertise of Employment Tribunals without considering the particular circumstances of the Appellants' claims. The Judge failed to consider the Appellants' reason for delay in bringing Employment Tribunal claims and did not make findings on whether the Appellants acted reasonably in not pursuing timely Employment Tribunal proceedings.

The court drew guidance from forum non conveniens principles established in Spiliada and Banco Atlantico, emphasizing that practical justice requires consideration of whether the claimant acted reasonably in choosing the forum and whether denying the claimant access to the chosen forum would be unjust, especially where the alternative forum is time barred.

The court rejected the submission that the expiry of the Employment Tribunal limitation period means that claims cannot be more conveniently disposed of there. Instead, the court held that the limitation bar could be a relevant factor in the convenience and discretion analysis. The court also noted the power of courts to refer specific questions concerning equality clauses to Employment Tribunals, supporting the suitability of courts to hear such claims.

Ultimately, the court concluded that the lower court failed to properly exercise its discretion under Section 2(3) and that striking out the claims was not justified without considering the particular facts and reasons for the Appellants' delay.

Holding and Implications

The appeal is ALLOWED. The decision of His Honour Judge Owen QC to strike out the Appellants' claims under Section 2(3) of the Equal Pay Act 1970 is set aside. The subsequent decision to strike out the claims as an abuse of process is also set aside as it depended on the erroneous interpretation of Section 2(3).

This judgment confirms that courts retain jurisdiction to hear equal pay claims based on the statutory equality clause and that the discretion to strike out claims under Section 2(3) must be exercised with careful consideration of the particular facts, including reasons for delay in bringing Employment Tribunal claims. The decision does not establish new precedent beyond clarifying the proper approach to Section 2(3) discretion and emphasizes the importance of practical justice in forum selection.

The Respondent remains entitled to renew an application to strike out the claims in the County Court, subject to proper exercise of discretion and consideration of all relevant factors.