On 29 November 2011 in Birmingham City Council v Abdulla the Court of Appeal dismissed an appeal from the High Court holding that an equal pay claim could be heard in the civil courts as a claim for breach of contract (as opposed to having to be heard in the Employment Tribunal where the time limit for bring claims are far shorter). The Claimants were excluded from bonuses given to employees in predominantly male roles so argued that the Council had breached their contracts by failing to provide them equal pay (a term implied into all contracts of employment).
The civil courts have discretion to 1) strike out a claim if it could be more conveniently disposed of by the Employment Tribunal; or 2) stay proceedings in the civil courts and await the determination of a reference to the Employment Tribunal. It was held that the claim would not have been “more conveniently disposed of” in the Employment Tribunal because it would have been dismissed as outside the limitation period before the equal pay claim could have been considered. Further, to strike out the claim would have given the Council a “windfall benefit of debarring the Claimants from pursuing their claims” which would not have served the interested of justice.
Only in extreme circumstances where, for example there is an abuse of process, will the civil courts strike out a claim if there is nowhere else for the claim to be heard.
While this guidance is helpful to employers and employees alike, it is important to note that the Council has applied for permission to appeal to the Supreme Court. Lynne Hill Trainee Solicitor