This week the Supreme Court heard
the case of Birmingham
City
The eponymous appellant, Mrs
Abdulla, and 174 other appellants, most of whom are woman previously employed
by Birmingham City Council, brought equal pay claims in the High Court. The
reason they were unable to bring the claim in the Employment Tribunal was the expiration
of the six-month limitation period, whereas a six-year limitation period
applies in the courts.
Consequently, an application was made by the Council under s.2(3) of the Equal Pay Act
1970 for a declaration that the claims be struck out on the grounds that they
could be more conveniently disposed of by the Employment Tribunal, where they
would effectively be struck out in that forum for being out of time.
Despite the fact that the Equal
Pay Act 1970 has now been replaced by the Equality Act 2010, the courts retain
discretion to strike out an equal pay claim if it is more convenient for the
claim to be disposed of by the Employment Tribunal. The application was refused
by the High Court and its decision was upheld
by the Court of Appeal, in part on the ground that, were the claims to be
struck out, the claimants would be denied a remedy in proceedings which had
been brought in time in the courts. To strike out in these circumstances
would have the effect of the claimants having no choice of forum, contrary to
the implications of the 1970 Act and the intentions of Parliament.