A question of jurisdiction

As thousands of public sector workers take to the streets in protest against widespread spending cuts the court yesterday gave its backing for equal pay claims to be heard in the High Court.

The ruling will have far reaching implications for female public sector employees, who claim they were underpaid in comparison to their male counterparts. It will extend the limitation period for bringing such claims by allowing females to choose the High Court over the Employment Tribunal (ET).

Appealing a ruling handed down by Colin Edelman QC sitting as a deputy High Court judge last December, Birmingham City Council requested the claims be struck out on the basis that the High Court  did not hold jurisdiction to hear the case.

The local authority instructed Cloisters Chambers’ Paul Epstein QC to lead Old Square barrister Louise Chudleigh in the appeal. In what is turning into a war of words, the council has promised to take its case to the Supreme Court next in an effort to reverse the ruling.

Leigh Day partner Chris Benson, who instructed Outer Temple’s Andrew Short QC for the 157 claimants, slammed the council for wasting taxpayers’ cash on litigation.

He said: “The fees the council are spending on litigation could be used to contribute to a settlement that would see women paid the money they’re owed after years of unlawful underpayment.

“It’s disappointing for our clients and no doubt of concern to the taxpayers of Birmingham that they’ve decided to appeal again to the Supreme Court and we’d urge them to reconsider.”

At the appeal court the council argued that the cases should only be heard by an employment tribunal, where cases have to be lodged within six months after leaving employment or a change of contract, because it was the specialist court set up for such cases.

According to the judgment, the court should consider a number of factors when discussing jurisdiction such as “the nature of the claim, the specialist expertise of the ET as compared with that of the courts, the rules and procedures in the ET as compared with those of the courts and the interests of the administration of justice in the allocation of the court’s resources. Complex equal pay cases like these really belong in the ET […].”

The three appeal judges, Lord Justices Mummery,  Davis and Dame Janet Smith, were also told that the court should have “no compunction” in striking out the claims, even if the consequence were that the claimants would not be able to pursue their claims against the council.

The claimants, the defendants continued, were simply forum shopping.

The court rejected the argument.

Applying the approach of Lord Goff in Spiliada, practical justice would require the reason for not commencing ET proceedings to be taken into account.

If not presenting such proceedings was a reasonable expectation, the interests of justice are likely to be served by enabling claimants to continue litigating in a forum which has jurisdiction to hear their claims.

Giving the substantive ruling Mummery LJ stated: “The draconian consequences of striking out the claims in the ordinary courts in these cases would be that (a) the claimants would be deprived of their rights to pursue claims which they had brought in time in a court having jurisdiction to determine them on their merits; and (b) there would be nowhere else available for the claimants to have their claims determined on their merits, the ET being bound to dispose of them for lack of jurisdiction.”

In February it was revealed that the number of claims being heard in the ET had reached an all time high. In his annual report senior president of tribunals Lord Justice Carnwath revealed a 56 per cent increase in the number of claims brought in 2009-10 from 151,000 to 236,100 (25 February 2011).

This latest ruling will lift some of the pressures on the ET and paves the way for thousands of equal pay cases to be heard in the High Court.