Employment Law Update – November 2012
Equal pay claims can be brought by ex–employees for up to six years.
Following a recent ruling, it is now clear that if you are faced with an equal value claim by existing employees, you will need to consider whether any employees who have left in the previous six years might be able to bring a similar claim via the High Court.
On 5th November 2012, the Supreme Court (previously the House of Lords) issued a majority judgement in favour of a group of ex-employees and confirmed the validity of an equal pay claim up to six years after leaving employment.
The case was Abdulla and Others v Birmingham City Council. Mrs Abdulla and 173 other women had previously been employed by Birmingham City Council. Their claim followed a successful equal value claim brought on behalf of existing council employees under the Equal Pay Act (1970) as amended by the Equal Pay (Amendment) Regulations (1983).
Claims for breach of the equality clause under the Equal Pay Act (1970) have to be submitted to an employment tribunal within six months of the breach. Lord Wilson in his judgement said:
“Claims for a breach of an equality clause in a contract of employment were usually brought in the employment tribunal, which offers to litigants many advantages not on offer in a court, including greater expertise in their determination, less cost and, in principle, faster resolution.”
The argument of the Council was that the ex-employees’ claim should be struck out as being out of time, as they had not submitted their claim to an employment tribunal within six months of leaving employment. However, claims for breach of contract can be brought in the High Court up to six years after the breach (or last occurrence of the breach). The Supreme Court ruled that where there is ‘concurrent jurisdiction’ – i.e, where claims can be brought either in an employment tribunal or in the High Court - it would in most cases ‘be more convenient for the tribunal to dispose of a claim in respect of an equality clause’. In the current case of Mrs Abdulla and Others, however, the Court ruled that the claim could not be ‘more conveniently’ disposed of by an employment tribunal as it was time barred. There was therefore no restriction on their bringing the claim before the High Court.
One crumb of comfort offered to the Council by the Supreme Court was the suggestion that when it comes to the question of costs, which the High Court normally awards in favour of the successful party, the Court could take into account the conduct of the claimants in delaying bringing the claim and make a ‘different order’ .
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