JUDGMENT
Birmingham City Council (Appellant) v Abdulla
and others (Respondents)
before
Lady Hale
Lord Wilson
Lord Sumption
Lord Reed
Lord Carnwath
JUDGMENT GIVEN ON
24 October 2012
Heard on 11 July 2012
Appellant Respondent
Paul Epstein QC Andrew Short QC
Louise Chudleigh
Nathaniel Caiden
Naomi Ling
(Instructed by
Birmingham City Council
Legal and Democratic
Services)
(Instructed by Leigh Day
& Co)
LORD WILSON (with whom Lady Hale and Lord Reed agree)
1. Birmingham City Council (“Birmingham”) appeals against the order of the
Court of Appeal (Mummery and Davis LJJ and Dame Janet Smith) dated 29
November 2011, whereby it dismissed Birmingham’s appeal against the order of
Mr Colin Edelman QC, sitting as a deputy judge of the High Court, Queen’s Bench
Division, dated 17 December 2010. The deputy judge had dismissed
Birmingham’s application for a direction that the claims made against it by 174
claimants, joined as parties to the single action, should be struck out.
2. The claimants allege that they are former employees of Birmingham. All
except four of them are women. The claims, which were issued in the High Court
on 30 July 2010, were founded on an alleged breach of the “equality clause”
which, by section 1(1) of the Equal Pay Act 1970 (“the Act”), as substituted by
section 8(1) of the Sex Discrimination Act 1975, was deemed to have been
included in their contracts of employment. On 1 October 2010 the Act was
repealed; and the provisions of it which this appeal requires the court to consider
were replaced by provisions to similar effect in Chapter 3 of Part 5, and in
particular in Chapter 4 of Part 9, of the Equality Act 2010.
3. Under the Act an equality clause had effect in three different situations
specified in section 1(2) at (a) to (c). The claimants allege that the second situation,
specified at (b), applied to them, namely “where the woman is employed on work
rated as equivalent with that of a man in the same employment”. Although section
1(1) and (2) identified the contracts of women as those in which an equality clause
was to be included, the provisions applied equally to the contracts of men where
the situation was converse: section 1(13). Hence the claims of the four men; but, in
what follows, it will be convenient to refer only to the claims of the women.
Section 1(2)(b), as substituted by section 8(1) of the 1975 Act, proceeded to
provide that, where the second situation applied, the effect of the equality clause
was that:
“(i) if (apart from the equality clause) any term of the
woman’s contract determined by the rating of the work
is or becomes less favourable to the woman than a term
of a similar kind in the contract under which that man
is employed, that term of the woman’s contract shall be
treated as so modified as not to be less favourable, and
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(ii) if (apart from the equality clause) at any time the
woman’s contract does not include a term
corresponding to a term benefiting that man included
in the contract under which he is employed and
determined by the rating of the work, the woman’s
contract shall be treated as including such a term”.
4. The claimants allege that Birmingham employed them on work rated as
equivalent with that of certain men in the same employment pursuant to the
National Joint Council for Local Authorities’ Services (West Midlands Provincial
Council) Manual Workers Handbook 1987, known as the Blue Book, and to a Job
Evaluation Scheme referred to in it; but that their contracts did not provide for the
payment of the substantial bonuses and other additional payments for which the
contracts of the male comparators provided. They therefore claim sums equivalent
to such payments pursuant to the terms of their contracts provided for by section
1(2)(b) (i) and (ii) of the Act.
5. Birmingham has not yet filed a defence to the claims. It does not allege that
the claimants are out of time in bringing such claims in the High Court: their
claims are brought within six years of the date on which their alleged causes of
action accrued and so fall within the time set by section 5 of the Limitation Act
1980. Whether Birmingham will seek to dispute that it employed the claimants or,
if so, that their work was rated as equivalent with that of the male comparators and
whether it will seek to prove pursuant to section 1(3) of the Act, as substituted by
regulation 2(2) of the Equal Pay (Amendment) Regulations 1983 (SI 1983/1794),
that any variation between the contracts was genuinely due to a material factor
other than the difference of sex are all questions which remain to be seen. The
claimants suggest that, were their claims to go forward, the real battle would lie in
the quantification of their claims, which certainly appears complex, rather than in
the establishment of Birmingham’s substantive liability to them.
6. Were it not for one feature, the claims could have been presented by way of
complaint to an employment tribunal: section 2(1) of the Act, as amended by
paragraph 2 of Schedule 1 to the Sex Discrimination Act 1975 and section 1(2)(a)
of the Employment Rights (Dispute Resolution) Act 1998. Such claims are usually
brought in the tribunal, which offers to litigants many advantages not on offer in a
court, including greater expertise in their determination (even, in a specified
situation, provision to them free of charge of an expert report under section
2A(1)(b) of the Act, as inserted by regulation 3(1) of the 1983 Regulations), less
cost and, in principle, faster resolution. Indeed, in the course of giving the only
substantive judgment in the Court of Appeal, Mummery LJ, whose experience of
this area of the law is unrivalled, observed that he had never previously
encountered a claim under the Act which had been presented to a court rather than
the tribunal.
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7. The feature which precludes the claimants from presenting their claims to
the tribunal is that they would be out of time for doing so. They concede that
Birmingham ceased to employ them on various dates between August 2004 and
November 2008. Section 2(4)(a) of the Act provided that the tribunal could not
determine a complaint in respect of the contravention of a term modified or
included by virtue of an equality clause unless it was presented on or before “the
qualifying date”; and section 2ZA(3) provided that in a “standard case” the
qualifying date was the date falling six months after the last day on which the
woman was employed in the employment. It is agreed that each of the present
claims is a “standard case”, as defined in section 2ZA(2). The period of six months
was extended to nine months in specified circumstances but, even had such
existed, the extension would not have enabled these claims to be presented to the
tribunal.
8. Birmingham’s application to the court for a direction that the claims be
struck out has been brought pursuant to section 2(3) of the Act. The subsection, as
amended by section 1(2)(a) of the 1998 Act, provided as follows:
“Where it appears to the court in which any proceedings are pending
that a claim or counterclaim in respect of the operation of an equality
clause could more conveniently be disposed of separately by an
employment tribunal, the court may direct that the claim or
counterclaim shall be struck out; and (without prejudice to the
foregoing) where in proceedings before any court a question arises as
to the operation of an equality clause, the court may on the
application of any party to the proceedings or otherwise refer that
question, or direct it to be referred by a party to the proceedings, to
an employment tribunal for determination by the tribunal, and may
stay or sist the proceedings in the meantime.”
It will be convenient to describe the provision prior to the semi-colon as the first
part of the subsection and the provision following it as the second part.
9. It was Birmingham’s case before the deputy judge that the claims should
have been presented to the tribunal; that the reasons why each claimant had failed
to present her claim in time to the tribunal were irrelevant; that the claims “could
more conveniently be disposed of” by the tribunal notwithstanding that such
disposal would be by way of immediate dismissal for want of presentation in time;
and that in those circumstances the first part of section 2(3) conferred on him a
discretion to strike out the claims which he should proceed to exercise.
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10. In dismissing the application the deputy judge expressed himself in
categorical terms, as follows:
“On the true construction of section 2(3), it cannot be more
convenient for a claim to be disposed of separately by an
employment tribunal in circumstances where the…tribunal could not
determine the claim on its merits but would be bound to refuse
jurisdiction to deal with the claim because it was time barred.”
He added that, had his conclusion about the meaning of the word “convenient”
been otherwise, he would have held that to strike out the claims in such
circumstances would be to offend against the “principle of equivalence” under EU
law, which I will address in para 32 below. Finally, said the deputy judge, he
would have declined to exercise any discretion which might have arisen under the
first part of the subsection.
11. But in the Court of Appeal (as it does in this court) Birmingham put its case
differently. By that stage it had conceded that the reasons why each claimant had
failed to present her claim in time to the tribunal were relevant. It invited the court
to rule that, except where a claimant could provide a reasonable explanation for
her failure to do so, her claim should be struck out; and it sought an order that its
application be remitted to the High Court for inquiry into the identity of such
claimants (of whom it conceded that there would be some) as, by reference to such
an exception, could successfully resist the striking out of their claims.
12. In his judgment Mummery LJ held that the “basic assumption” behind the
first part of section 2(3) was that both the court and the tribunal would have
jurisdiction to decide the claim on its merits; that the purpose behind the provision
was, in that context, to identify the forum more fitted for its resolution; that, in that
Birmingham was not alleging that the claims represented an abuse of the process
of the court, the reasons why the claims had not been made to the tribunal were
irrelevant; and that the deputy judge’s decision had been correct. Nevertheless
Mummery LJ expressed himself in terms more qualified than those used by the
deputy judge: he said that, in the exercise of the discretion under the first part of
the subsection, the fact that a complaint to the tribunal would be time-barred would
be no more than “a circumstance of considerable weight in most cases”. He added
that it would be exceptional for the reasons for not presenting a complaint in time
to the tribunal to be relevant to the exercise of the discretion but that, for example,
they would be relevant where they were such as to render the claim made to the
court an abuse of its process. As an aside, Mummery LJ addressed the word
“separately” in the first part of the subsection, upon which nothing in the appeal
turned; and he observed, helpfully, that Parliament may in particular have had in
mind the presentation to the court of a mixed claim, of which one component was
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of breach of an equality clause and of which others were such as the tribunal had
no jurisdiction to entertain. In the light of his conclusion Mummery LJ explained
that he had no need to address the principle of equivalence.
13. We may readily expostulate that it cannot be more convenient for a claim to
be disposed of in a forum in which, at the outset, and without reference to its
merits, it would be required to be dismissed. But the issue in this appeal is
somewhat more complicated than that. What, asks Birmingham, was Parliament’s
purpose in providing a strict time limit for the presentation of claims to the tribunal
if those who fail to comply with it can have their claims heard elsewhere? The
suggested absence of any good answer to that question leads, says Birmingham, to
a need for us to stifle our expostulation and, in a more measured way, to conclude
that the immediate disposal in the tribunal of a time-barred claim would be
otherwise than more convenient only in the case of those claimants who were to
provide a reasonable explanation for their failure to present their claims to it in
time.
14. Other than in nomenclature, the terms of section 2(3) of the Act did not
change between enactment and repeal. It is necessary to look carefully at the
original context of the subsection. The Act, although enacted on 29 May 1970,
provided that in principle it should come into force on 29 December 1975; the
purpose of the lengthy delay was to afford time to employers to adapt to its new
requirements. Article 119 of the EEC Treaty, later renumbered article 141, was
replaced by article 157 of the Treaty on the Functioning of the European Union,
which now provides that:
“Each Member State shall ensure that the principle of equal pay for
male and female workers for equal work or work of equal value is
applied.”
The scope of the earlier article was explained in article 1 of the Council’s Equal
Pay Directive No 75/117 adopted on 10 February 1975. Once the Act of 1970 was
in force, the UK, which had become a member of the European Community on 1
January 1973, thereby discharged its obligations, at any rate in relation to Great
Britain, under the article, as explained by the directive. But, as the date of its
enactment shows, the Act was not originally a response to the need for the UK to
discharge its Community obligations. It was the result of a long public campaign
for equal pay for women on the part of feminists, trade unionists and fair-minded
citizens generally.
15. Parliament resolved that the mechanism of the provision for equal pay for
women should be by its very insinuation into their contracts of employment.
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Section 1(2) originally provided that “It shall be a term of the contract under which
a woman is employed…that she shall be given equal treatment with men…”. With
effect from the date when the Act came into force, the section was radically recast
by the Sex Discrimination Act 1975, which had been enacted in the interim. But
the contractual mechanism was retained. The substituted section 1(1)
thenceforward provided that:
“If the terms of a contract under which a woman is employed…do
not include … an equality clause they shall be deemed to include
one.”
16. In 1975 the employment tribunal, or industrial tribunal as it was called prior
to August 1998, had no general jurisdiction to determine a claim that a contract of
employment had been broken. Its general jurisdiction to do so was introduced only
much later, in the wake of a suggestion made by Lord Browne-Wilkinson in
Delaney v Staples (trading as De Montfort Recruitment) [1992] 1 AC 687, 698B; it
was achieved by the Industrial Tribunals Extension of Jurisdiction (England and
Wales) Order 1994 (SI 1994/1623), and even then the jurisdiction was, as it
remains, hedged about. Back in 1975 the jurisdiction of the tribunal, which had
been established pursuant to the Industrial Training Act 1964, was limited to the
determination of claims by employees of breach of specified statutory, noncontractual, rights, for example to payment in the event of redundancy. In that
Parliament intended that claims by women of breach of the equality clause in their
contracts could be determined by the tribunal, it followed that jurisdiction to do so
had specifically to be conferred on it by the Act. Such was achieved by section
2(1). Although another formulation of the subsection was substituted even before it
came into force, the original formulation is worth noting. It provided that:
“… a claim for arrears of remuneration or damages in respect of a
failure to comply with an equal pay clause … may be referred to and
determined by an industrial tribunal, and may be so referred either by
the person making the claim or by the person against whom it is
made.”
It is relevant to what follows at para 21 below to note the word “referred”: it may
be seen that, pursuant to the Act as originally drawn, a woman “referred”, as
opposed to “presented”, a claim to the tribunal. The unusual use of the verb
appears to have been considered necessary in order also to encompass the
employer’s right to seek from the tribunal a ruling in relation to a claim proposed
to be made against it.
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17. Although it thus conferred on the tribunal jurisdiction to determine a claim
of breach of contract in this regard, Parliament did not oust the jurisdiction of the
court to determine such a claim. That there was concurrent jurisdiction in the
tribunal and the court is plain from (among others) the subsection, namely section
2(3), which is central to this appeal; and, over the four subsequent decades, such
has been frequently acknowledged and never doubted.
18. Attention should now turn to the period of limitation provided by
Parliament for the reference of a claim to the tribunal of breach of an equality
clause. Its original provision was in section 2(4), as follows:
“No claim in respect of the operation of an equal pay clause relating
to a woman’s employment shall be referred to an industrial tribunal
otherwise than by virtue of subsection (3) above, if she has not been
employed in the employment within the six months preceding the
date of the reference.”
This provision remained in force until 19 July 2003, when, as supplemented by a
new section 2ZA, as inserted by regulation 4 of the Equal Pay Act 1970
(Amendment) Regulations 2003 (SI 2003/1656), it was replaced by more
sophisticated provisions which catered also for what were described as a
“concealment case”, a “disability case” and a “stable employment case”. Fresh
treatment of a “stable employment case” had been necessary in order to comply
with the “principle of effectiveness” under EU law. Such is the principle which
requires that “the procedural rules for proceedings designed to ensure the
protection of the rights which individuals acquire through the direct effect of
Community law… are not framed in such a way as to render impossible in practice
the exercise of rights conferred by Community law”: Preston v Wolverhampton
Healthcare NHS Trust, ECJ, (Case C–78/98) [2001] 2 AC 415, para 31. One of the
preliminary rulings of the ECJ in that case was that the application of section 2(4)
to a “stable employment case”, as established for the purposes of domestic law,
offended against the principle of effectiveness; the ruling was duly adopted by the
House of Lords in Preston v Wolverhampton Healthcare NHS Trust (No 2) [2001]
UKHL 5, [2001] 2 AC 455, paras 32-33 and the decision precipitated the reform.
For a “standard case” the period of limitation remained as six months after the end
of the employment.
19. It is impossible to make a direct comparison between the period of
limitation provided for the making of a claim (or, from 2003, a claim in a
“standard case”) to the tribunal, namely six months from the end of the
employment, and the period provided for the making of such a claim to the court,
namely six years from the accrual of the cause of action. In that such claims can be
made, and frequently are made, to the tribunal during the currency of the
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claimant’s employment, the period of limitation for making a claim to the tribunal
is by no means as short as might at first appear. But there was another restriction,
not strictly cast as a provision of limitation but having such effect, to which
reference should be made. It does not aid comparison between the two periods
because it applied equally to proceedings in the tribunal and to proceedings in
court. It was section 2(5) and, as originally drawn, it provided as follows:
“A woman shall not be entitled, in proceedings brought in respect of
a failure to comply with an equal pay clause (including proceedings
before an industrial tribunal) to be awarded any payment by way of
arrears of remuneration or damages in respect of a time earlier than
two years before the date on which the proceedings were instituted.”
In Levez v TH Jennings (Harlow Pools) Ltd [2000] ICR 58 the employment appeal
tribunal held, following a comparison with the ambit of the right of employees to
make other contractual claims not reflective of Community law, that the period of
only two years in section 2(5) offended against the principle of equivalence under
EU law. In the Preston (No 2) case, cited at para 18 above, the House of Lords
held, by way of adoption of another of the preliminary rulings of the ECJ in the
same case, that, in relation at any rate to part-time workers, mostly being women,
who had been excluded from occupational pension schemes, the subsection also
offended against the principle of effectiveness under EU law: see paras 10 to 12.
The result was, in 2003, the replacement of the subsection, and its supplementation
for England and Wales by section 2ZB, of which the effect was that, for the
“standard case” (being, for this purpose, somewhat differently defined), a period of
six years was substituted for that of two years.
20. A striking feature of the limitation period of six months set by section 2(4)
of the Act was that Parliament never made it extendable. For almost all of the
many other claims which, by 2010, could be made to the tribunal, Parliament
prescribed limitation periods which it permitted the tribunal to extend; in some
cases to extend them insofar as it was just and equitable to do so and, in other
cases in which it had not been reasonably practicable for the complaint to be
presented in time, to extend them for such further period as the tribunal might
consider reasonable: see Harvey on Industrial Relations and Employment Law,
2012 update, Division PI “Practice and Procedure”, para 84. It is strongly arguable
that Parliament tolerated an unusually absolute time limit for the presentation to
the tribunal of a claim under the Act only because it recognised that, were she to
fall foul of that time limit, the claimant would nevertheless be likely to remain in
time for making her claim in court.
21. But I cannot resist one further piece of historical conjecture. It relates to the
phrase “otherwise than by virtue of subsection (3) above” in the form in which
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section 2(4) remained in force until 2003 and which I have set out at para 18
above. One’s initial reaction – such was certainly the reaction of highly
experienced leading counsel at the hearing of this appeal – is that the exclusion of
the limitation period achieved by that phrase related to the second part of section
2(3), set out at para 8 above, namely to the ability of a court to refer to the tribunal
a question as to the operation of an equality clause which arose in pending
proceedings and to stay them in the meantime. It seems to me however that one’s
initial reaction might be wrong. In principle a reference by a court to a tribunal of a
specific question raised in proceedings pending before it could not in any event fall
foul of a period within which a claim had to be presented to the tribunal; so, on the
initial analysis, the phrase would be redundant. Indeed, more specifically, the
phrase was inserted into section 2(4) as an exception to the provision that “[n]o
claim … shall be referred to [a] tribunal…” (italics supplied). But the second part
of section 2(3) did not provide for the reference of a claim; it provided for the
reference of a question. It was, by contrast, the first part of the subsection which
provided, albeit obliquely, for the reference of a claim, namely by the claimant to
the tribunal as the intended sequel to the court’s conclusion that her claim could
more conveniently be disposed of there and to its consequent striking-out. I
recognise that judges can become dangerously enamoured of points introduced by
themselves. So I venture only tentatively that, by the phrase introduced into section
2(4), Parliament intended to make entirely clear that there could never be
circumstances in which a claimant could suffer the striking-out of her claim in
court on the basis that it could more conveniently be disposed of in the tribunal
even though she would be time-barred for presenting her claim there. The phrase,
together therefore with this point, was swept away in 2003, when section 2(4) was
replaced; but nothing suggests that, had such been Parliament’s initial intention, it
remained its intention no longer.
22. In now contending that, except where they can provide a reasonable
explanation for their failure to present their claims in time to the tribunal, the
claims of the claimants should be struck out under section 2(3) of the Act,
Birmingham relies heavily on observations made in the House of Lords in Spiliada
Maritime Corporation v Cansulex Ltd [1987] AC 460 and on the decision of Slade
J in Ashby v Birmingham City Council [2011] EWHC 424 (QB), [2012] ICR 1, in
which she applied the observations to claims materially similar to the present.
23. In the Spiliada case shipowners sued shippers for breach of contract in
having loaded on to their ship a cargo of wet sulphur which had corroded it. The
House of Lords held that the judge at first instance had rightly granted leave to
serve the shippers out of the jurisdiction so that the action in England might
proceed. The shippers had opposed leave on the basis that the shipowners should
have sued them, if at all, in British Columbia, where any such action would by
then have been time-barred. Subject to three points of distinction which he
identified at pp 480G-481E, Lord Goff, with whose speech the other members of
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the committee agreed, held that the principle which governs the grant of leave to
serve out of the jurisdiction and the stay of the action on the ground of “forum non
conveniens” was the same. It was, so he held at p 476C, whether, in the absence of
special circumstances, the suggested alternative forum was appropriate for the trial
of the action in the sense of being more suitable for all the parties and the ends of
justice. But, at pp 476H-477A, he added a rider that, where the choice was
between competing jurisdictions within a federal state, a strong preference should
be given to the forum chosen by the claimant upon which, by its constitution, the
state had conferred jurisdiction.
24. It is Lord Goff’s treatment of a time bar in the alternative jurisdiction on
which Birmingham relies. He observed, at pp 483E-484E:
“Let me consider how the principle of forum non conveniens should
be applied in a case in which the plaintiff has started proceedings in
England where his claim was not time barred, but there is some other
jurisdiction which, in the opinion of the court, is clearly more
appropriate for the trial of the action, but where the plaintiff has not
commenced proceedings and where his claim is now time barred.
Now, to take some extreme examples, suppose that the plaintiff
allowed the limitation period to elapse in the appropriate jurisdiction,
and came here simply because he wanted to take advantage of a
more generous time bar applicable in this country; or suppose that it
was obvious that the plaintiff should have commenced proceedings
in the appropriate jurisdiction, and yet he did not trouble to issue a
protective writ there; in cases such as these, I cannot see that the
court should hesitate to stay the proceedings in this country, even
though the effect would be that the plaintiff’s claim would inevitably
be defeated by a plea of the time bar in the appropriate jurisdiction.
Indeed a strong theoretical argument can be advanced for the
proposition that, if there is another clearly more appropriate forum
for the trial of the action, a stay should generally be granted even
though the plaintiff’s action would be time barred there. But, in my
opinion, this is a case where practical justice should be done. And
practical justice demands that, if the court considers that the plaintiff
acted reasonably in commencing proceedings in this country, and
that, although it appears that (putting on one side the time bar point)
the appropriate forum for the trial of the action is elsewhere than
England, the plaintiff did not act unreasonably in failing to
commence proceedings (for example, by issuing a protective writ) in
that jurisdiction within the limitation period applicable there, it
would not, I think, be just to deprive the plaintiff of the benefit of
having started proceedings within the limitation period applicable in
this country… The appropriate order, where the application of the
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time bar in the foreign jurisdiction is dependent upon its invocation
by the defendant, may well be to make it a condition of the grant of a
stay, or the exercise of discretion against giving leave to serve out of
the jurisdiction, that the defendant should waive the time bar in the
foreign jurisdiction; this is apparently the practice in the United
States of America.”
Lord Goff added, at pp 487H-488A, that, had he considered that the court of
British Columbia was the appropriate forum, he would have appended such a
condition to the refusal of leave.
25. In the Ashby case Slade J heard an appeal against the decision of a circuit
judge to strike out, pursuant to section 2(3) of the Act, claims brought in the
county court by 14 women who were former employees of Birmingham and who
alleged its breach of the equality clause in their contracts. The issue in the appeal
was identical to the issue in the present proceedings in that, by the date of the issue
of their claims in court, the women would have been time-barred for presenting
them to the tribunal. Following the hearing before Slade J but prior to the delivery
of her judgment, the deputy judge gave his judgment in the present case; and it was
brought to her attention. But she disagreed with it. She observed, at paras 71 and
78, that the fact that the claims would be time-barred if presented to the tribunal
did not preclude a conclusion that they could more conveniently be disposed of
there. She suggested, at para 56, that assistance in the construction of section 2(3)
was to be gained from the observations of Lord Goff in the Spiliada case and thus
held, at para 78, that the reason why the women had not presented their claims in
time to the tribunal had to be taken into account. She therefore allowed the
women’s appeal but without prejudice to the right of Birmingham to reapply to the
county court for their claims to be struck out under the subsection if and insofar as
it might wish to contend that in all the circumstances they had not reasonably
explained their failure to present their claims in time to the tribunal.
26. I agree with Mummery LJ in his judgment in the present proceedings, and,
with respect to her, I disagree with Slade J in the Ashby case, about the relevance
to the construction of section 2(3) of the observations of Lord Goff in the Spiliada
case. The words which, by the subsection, Parliament has required us to apply to
the facts before us are “more conveniently”. “[I]ts statutory objective”, said
Mummery LJ of the subsection, “is the distribution of judicial business for
resolution in the forum more fitted for it.” Lord Goff was required to consider a
much broader canvas. He observed, at p 474E:
“I feel bound to say that I doubt whether the Latin tag forum non
conveniens is apt to describe this principle. For the question is not
one of convenience, but of the suitability or appropriateness of the
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relevant jurisdiction. However the Latin tag… is so widely used to
describe the principle… that it is probably sensible to retain it. But it
is most important not to allow it to mislead us into thinking that the
question at issue is one of ‘mere practical convenience’.”
The proposition that an action brought inappropriately in England should
sometimes not be allowed to proceed even though it can no longer be brought in
the foreign jurisdiction in principle appropriate to it is in my view of no assistance
in determining whether, in circumstances in which Parliament has specifically
allowed a claimant to bring her entirely domestic claim in court, it could more
conveniently be disposed of by the tribunal. No doubt in most cases it will be more
convenient for the tribunal to dispose of a claim in respect of the operation of an
equality clause, provided that it can still be brought there, rather than for the court
to do so. If the claim can no longer be brought there, the effect of Birmingham’s
submissions in this appeal, founded on the decision of Slade J, would be to convert
the reasons why the claimant had failed to present her claim in time to the tribunal
into the factor determinative of whether it be struck out by the court. But I do not
regard the reasons for her failure as relevant in any way to the notion of
convenience. In my view Birmingham aspires in effect to re-write section 2(3);
and to introduce into the law a principle which would in some cases in effect serve
to shorten the period of limitation allowed by Parliament for the bringing of claims
in court.
27. A modified version of Birmingham’s submissions finds favour with Lord
Sumption and Lord Carnwath. Whereas Birmingham contends for an inquiry
limited to that single feature, namely the reasons for a claimant’s failure to present
her claim in time to the tribunal, they consider that the proper operation of section
2(3) requires a multi-factorial inquiry not just into that feature but into all others
which might bear upon whether, in the interests of justice, a claim should be struck
out; they would therefore remit the claims of the 174 claimants for individual
consideration along such lines. I entirely understand the aspiration to attribute a
greater degree of efficacy to the rules of limitation in sections 2(4) and 2ZA of the
Act. On any view they lie curiously alongside the right to issue proceedings in
court, governed by a rule of limitation which, in a number of cases albeit certainly
not in all, will prove to be more indulgent to claimants. But in my respectful view
the aspiration drives my two colleagues to treat section 2(3) with an unacceptable
degree of violence. The adverb in the subsection is “conveniently”. Of course the
disposal of a claim can be achieved by application of rules of limitation; but in my
view the adverb qualifies the type of disposal addressed in the subsection and
mandates a straightforward practical inquiry into the forum more convenient for
investigation of the merits. It is analogous to the practical inquiry which attends
the permission given to a claimant by rule 7.3 of the CPR to “use a single claim
form to start all claims which can be conveniently disposed of in the same
proceedings”. I would deprecate a multi-factorial inquiry into what Lord Sumption
Page 13
neatly describes as the disembodied interests of justice in place of the inquiry for
which, on the natural reading of the subsection, Parliament has provided.
28. In Restick v Crickmore [1994] 1 WLR 420 the Court of Appeal considered
five appeals by claimants who in the High Court had brought proceedings which
were required to be brought in the county court and which the judges below had
struck out even though the claimants had become out of time for bringing them in
the county court. The decision of the Court of Appeal was that section 40(1) of the
County Courts Act 1984 had given the judges a power, which they should have
exercised, to transfer the proceedings to the county court instead of striking them
out. It may have been a controversial construction of the subsection but it was a
just decision. Stuart-Smith LJ, with whom the other members of the court agreed,
said, at p 427E-G:
“The construction I prefer accords with the well established policy of
the courts: provided proceedings are started within the time
permitted by the Statute of Limitations, are not frivolous, vexatious
or abuse of the process of the court and disclose a cause of action,
they will not as a rule be struck out because of some mistake in
procedure on the part of the plaintiff or his advisers… The ordinary
sanction for failure to comply with the requirements will be in
costs.”
The present claimants have a far stronger case than the appellants in the Restick
group of cases for the effective survival of their claims in that they were never
required to proceed in the tribunal.
29. I would hold that the present claims cannot more conveniently be disposed
of by the tribunal and that Birmingham’s invocation of section 2(3) of the Act was
rightly rejected both by the deputy judge and by the Court of Appeal. I prefer the
categorical terms favoured by the deputy judge to the qualified terms favoured by
Mummery LJ. The latter referred to cases of abuse of process. Nothing can detract
from the inherent jurisdiction of the court to strike out a claim in respect of the
operation of an equality clause if it were to represent an abuse of its process; one
example might be that of a claimant who had been invited to present a complaint
in time to the tribunal but who had spurned the invitation in order to secure what
the court considered to be an illegitimate advantage by bringing the claim before
itself. But the subject of section 2(3) was not abuse of process; and I would hold,
for the purpose both of the first part of the subsection and of its successor, namely
section 128(1) of the Equality Act 2010, that a claim in respect of the operation of
an equality clause can never more conveniently be disposed of by the tribunal if it
would there be time-barred.
Page 14
30. No doubt one aspect of Birmingham’s concern about the prospect that
claims in respect of the operation of an equality clause may be brought against
employers in court, rather than in the tribunal, relates to the court’s general rule,
which does not apply in the tribunal, to make an order for costs against the
unsuccessful party. But the court may make a different order and, in deciding what
order (if any) to make in respect of costs, it must have regard to all the
circumstances, including the conduct of the parties: CPR r 44.3(4)(a). It is to this
latter inquiry that the factor incorrectly urged as relevant to this appeal might well
become relevant. The court’s conclusion that, instead of bringing it in court, a
claimant should, in all the circumstances, reasonably have presented her claim, in
time, to the tribunal might well be relevant to its survey in relation to costs under
the subrule: insofar as, had she done so, she would not have obtained an order for
costs, such might well be relevant to the court’s decision as to the appropriate
order.
31. Even in circumstances in which the presentation of a claim to the tribunal
would be time-barred, the power of the court under both the second part of section
2(3) of the Act and its successor, namely section 128(2) of the 2010 Act, to refer to
the tribunal a question as to the operation of an equality clause still remains; and
should not be forgotten. Nevertheless Parliament might well wish to consider
introducing a relaxation of the usual limitation period for the presentation of a
claim to the tribunal in cases in which a claim in respect of the operation of an
equality clause has been brought, in time, before the court and, were it not for the
effect of the usual limitation period, would more conveniently be disposed of by
the tribunal.
32. I have doubts about the value of assuming, contrary to the above, that the
effect of section 2(3) of the Act is, as contended for by Birmingham, to preclude a
hearing of the claimants’ claims on the merits even in court, save if they fall within
the exception for which it now allows; and, upon that assumption, of proceeding to
consider whether such an effect infringes the EU principle of equivalence. Such is
the principle which requires that “the procedural rules for proceedings designed to
ensure the protection of the rights which individuals acquire through the direct
effect of Community law [should be] not less favourable than those governing
similar domestic actions”: para 31 of the judgment of the ECJ in the Preston case,
cited at para 18 above. But I will address the point, on which the court heard only
limited argument, briefly. My view, contrary to that of the deputy judge, is that this
is not a freestanding point: section 2(3) conferred upon the court a discretion and,
were any exercise of the discretion in favour of a strike-out to offend against the
principle of equivalence, the obligation of the court would be not so to exercise it:
Litster v Forth Dry Dock and Engineering Co Ltd [1990] 1 AC 546. So the point is
linked to the proper exercise of the discretion, which was the deputy judge’s
separate and final reason for dismissing Birmingham’s application.
Page 15
33. But the decision of the House of Lords in the Preston (No 2) case, cited at
para 18 above, seems to me to place formidable difficulties in the path of the
claimants’ invocation of the principle of equivalence. In the Preston litigation
some 60,000 part-time workers, mainly women, complained to the tribunal that
their exclusion from their employers’ pension schemes infringed the equality
clause introduced into their contracts by the Act. Acknowledging their own
obligation to make the appropriate back-dated contributions into them, they sought
recognition of their entitlement to membership of the schemes, to be backdated
over what, in some cases, had been their many years of employment. Test cases
were identified in order to resolve preliminary issues in relation to the application
to them of section 2(4) and (5) of the Act; and in Preston v Wolverhampton
Healthcare NHS Trust (No 1) [1998] 1 WLR 280 the House of Lords referred three
questions to the ECJ for preliminary rulings as to whether, in any of the three
respects, the application of the subsections infringed the principles of equivalence
or of effectiveness. I have referred, at paras 18 and 19 above, to two of the
preliminary rulings of the ECJ. Its third (which did not concern cases of stable
employment) was, at para 35, that the six months rule did not offend against the
principle of effectiveness and, at para 49, that, in the light of the greater ability of
the national court to identify a comparator, it was for that court to determine
whether it offended against the principle of equivalence. Such was, therefore, an
exercise which, upon the return of the case to it, the House of Lords conducted in
Preston (No 2), cited at para 18 above. It determined that the rule did not offend
against the principle of equivalence. Albeit with considerable hesitation on the part
of three of its members, the committee decided that there was a sufficiently similar
comparator in the form of an action under domestic law for damages by an
employee against an employer for failure to pay to the trustees of a pension
scheme on his or her behalf the sums for which the contract of employment had
provided: para 22 of the speech of Lord Slynn. But the committee was not satisfied
that the six months rule for a claim under the Act was less favourable than the six
years rule which would apply to such an action: paras 24 to 31 of his speech. In
particular he stressed, at para 30, that a claim brought in the tribunal within six
months of the end of the employment might in some cases stretch much further
back than six years from the date of the claim.
34. The decision in Preston (No 2), which some might now consider border-line
but from which the court was not invited to depart, is therefore authority for the
proposition that, in its application to what after 2003 was known as the standard
case, the six months rule in section 2(4) of the Act did not offend against the
principle of equivalence. The claimants concede that, were the subject of the
present appeal to be the time limit for a claim to the tribunal, the decision would
foreclose the point against them. But, in an argument accepted by the deputy
judge, they suggest that the subject is, instead, the time limit for a claim to the
court. I disagree. For Birmingham seeks, by the operation of section 2(3), in effect
to import into the time limit for a claim to the court – and subject to the exception
for which it now makes allowance – the time limit for a claim to the tribunal. The
Page 16
deputy judge proceeded first to note the suggested comparators in the present case,
namely the men entitled under the express terms of their contracts to the additional
payments, and then, for the purposes of the comparison, to imagine that
Birmingham had refused to make such payments, with the result that the men had
sued for them in court. He held that, by comparison with their position, the effect
of Birmingham’s submissions about the proper application to the claimants of
section 2(3) would offend against the principle of equivalence. But I discern no
material difference between the deputy judge’s comparison and that made in
relation to pension provision by the House of Lords in the Preston (No 2) case. I
do not consider that Birmingham’s contentions, however flawed, offend against
the principle of equivalence.
35. I would dismiss the appeal.
LORD SUMPTION (with whom Lord Carnwath agrees)
36. The majority of the Court proposes to dismiss the appeal. I shall therefore
be brief in explaining why, for my part, I would have allowed it. In bald summary,
the decision of the deputy judge and the Court of Appeal frustrates the policy
underlying the provisions of the Equal Pay Act relating to limitation. Since those
provisions are an important part of the statutory scheme, I find it impossible to
accept that this result can have been intended by Parliament.
37. It is common ground that in principle the courts and the employment
tribunals have concurrent jurisdiction to hear claims for breach of the statutory
equality clause in a contract of employment. The issue on this appeal arises from
the fact that Parliament has provided by sections 2(4) and 2ZA of the Equal Pay
Act that in proceedings before an employment tribunal various limitation periods
are to apply (depending on the type of case) which differ from those that would
apply under the general law in proceedings before a court. Under the Act as
originally enacted, there were three differences. First, the period was shorter, six
months as opposed to six years. Second, it ran from the end of the end of the
employment relationship, and not from the accrual of the cause of action. Third,
there were no provisions for deferring the running of the period, such as those
which would apply to proceedings in court under the Limitation Act 1980 and the
Latent Damage Act 1986. Under the Equal Pay Act as it stood in 2005 (the
relevant time for the purpose of this case), the position is exactly the same in a
“standard case” like this one. But by that time the statutory scheme had been
refined by amendment so as to defer the running of time in cases of “concealment”
and “disability”.
Page 17
38. The question comes down to this. If a particular claim would be time-barred
before an employment tribunal but not before a court, is it open to a court to strike
it out on the ground that it ought to have been brought before an employment
tribunal within the period provided for by section 2(4)? Since the court has no
power to transfer a case directly to the employment tribunal, and no one suggests
that the present proceedings are an abuse of the court’s process, this depends
entirely on section 2(3).
39. Section 2(3) empowers a court in which a claim under the equality clause is
pending to strike it out if it could “more conveniently be disposed of separately by
an employment tribunal.” Although the present question can fairly be described as
turning on the construction of this provision, the issue is particularly difficult to
resolve by reference to the mere language of the Act. The relevant provisions are
poorly drafted, and a complex history of ill-thought-out amendments has
contributed nothing to their coherence. This is therefore a case in which it is more
than usually important to examine the underlying purpose of Parliament in (i)
conferring jurisdiction on employment tribunals over equal treatment claims, and
(ii) providing for special periods of limitation to apply to such claims in those
tribunals.
40. Employment tribunals (originally “industrial tribunals”) were established by
the Industrial Training Act 1964, initially for the limited purpose of hearing
appeals against the imposition of industrial training levies. Their jurisdiction has
always been wholly statutory, but it has been progressively expanded over the past
half-century. At the time when the Equal Pay Act was originally passed in 1970,
the main business of the tribunals was the determination of claims for statutory
redundancy payments, a jurisdiction conferred on them in 1965. By the time that
the Act came into force in substantially amended form in 1975, its jurisdiction also
extended to unfair dismissal claims. By 1970, and even more by 1975,
employment tribunals were well established as cheap, informal, expert tribunals,
comprising predominantly lay members and operating under a simplified
procedure, in which parties need not be legally represented (or indeed represented
at all) and in which costs orders were not ordinarily made. These were, and
remain, substantial advantages not just for parties appearing in them, but for the
disembodied interests of justice. It can be assumed that they were significant
factors in Parliament’s decision, when enacting the Equal Pay Act 1970, to confer
jurisdiction upon them in equal treatment cases. Their specialist expertise in
employment practice was perhaps of particular value in these cases, because they
commonly turned on an expert evaluation of the claimant’s job by comparison
with a relevant comparator: see section 1(5). Notwithstanding these advantages,
the court’s jurisdiction was retained, but it follows from the criterion laid down by
section 2(3) for striking out equal treatment claims brought in court that the
draftsman envisaged that the court’s jurisdiction would be invoked only if the
subject matter of any particular claim made it the more convenient forum. The
Page 18
paradigm case (although not necessarily the only one) would be proceedings
involving mixed claims arising out of the same employment relationship, some of
which were within the jurisdiction of the employment tribunal, while others were
not. Hence the reference to claims brought in court that could more conveniently
be disposed of “separately” by an employment tribunal.
41. Turning to the purpose of the special limitation provisions in the Act, it is
right to make two points by way of introduction. The first is that issues of
limitation are bedevilled by an unarticulated tendency to treat it as an
unmeritorious procedural technicality. This is, I think, unjustified. Limitation in
English law is generally procedural. But it is not a technicality, nor is it necessarily
unmeritorious. It has been part of English statute law for nearly four centuries. It
has generated analogous non-statutory principles in equity. Some form of
limitation is a feature of almost all other systems of law. And it has been accepted
in principle in the jurisprudence of both the Court of Justice of the European Union
and the European Court of Human Rights. Limitation reflects a fundamental and
all but universal legal policy that the litigation of stale claims is potentially a
significant injustice. Delay impoverishes the evidence available to determine the
claim, prolongs uncertainty, impedes the definitive settlement of the parties’
mutual affairs and consumes scarce judicial resources in dealing with claims that
should have been brought long ago or not at all. These considerations, which are
common to most litigation, are particularly germane to equal treatment claims. The
characteristics of a job are liable to change radically, especially at a time of
economic upheaval, industrial rationalisation or technological advance. The
selection of appropriate comparators and their comparative evaluation are
inherently more uncertain exercises when they relate back several years to a state
of affairs which may no longer exist. In addition, equal treatment claims are by
their nature liable to affect large classes of employees of a particular firm and may
therefore have important financial implications for the employer, which will be
particularly disruptive if they arise out of the position of ex-employees who left
long ago.
42. The second introductory point is that the dismissal of a claim on the ground
that it is time-barred is a disposal of the claim. Limitation is a defence. A dismissal
on that ground is a judicial decision giving effect to that defence. It was submitted
to us that the introductory words of section 2(4) (“No determination may be made
by an employment tribunal…”) mean that the provision is a limitation on the
employment tribunal’s jurisdiction. There is authority that provisions in this form,
or substantially similar, do go to jurisdiction: see, most recently, Radakovits v
Abbey National Plc [2009] EWCA Civ 1346; [2010] IRLR 307. I am by no means
convinced that this is correct, but it is unnecessary to decide the point because
section 2(4) plainly gives rise to a defence in proceedings before an employment
tribunal, even if it also operates as a limitation on the tribunal’s jurisdiction. The
words cannot mean that the tribunal is disabled from determining whether the
Page 19
claim is time-barred. The only consequence of treating section 2(4) as going to
jurisdiction is therefore that the defence cannot effectually be waived.
43. The legislative policy underlying section 2(4) of the Act, both in its original
and its amended form, is clear. It is to confer a degree of protection on the
employer. There is no other purpose that can be imputed to the legislature, and
none was plausibly suggested in argument. In “standard” and “stable employment”
cases the object was to restrict the employer’s exposure to equal treatment claims
to those which were brought while the employment relationship still subsisted, or
within a short time thereafter, so as to enable him to draw a line under any
employment relationship at that point.
44. Why were these provisions absolute? Unlike Lord Wilson (paragraph 20), I
do not think that in the statute as originally enacted, the absolute character of this
time bar was due to the availability of a concurrent jurisdiction in court which
would not be affected by it. If this issue had been considered by the draftsman at
all, he would surely have made specific provision for reconciling the two
procedures. Likewise, I cannot, with respect, agree with his historical conjecture
(paragraph 21) about the reason for exclusion from section 2(4) in its original form
of a “claim” referred to an industrial tribunal by virtue of section 2(3). I agree that
the drafting is unclear, but the exclusion seems most naturally to refer to the only
form of reference for which provision is made by section 2(3), even if (as he
rightly says) that is not strictly a reference of the “claim” as such. In any event,
neither argument can arise on the terms of the Act as it has stood since its
amendment in 2003. The absence of any provision for deferring the running of
time in “standard” and “stable employment” cases is in my view more plausibly
explained by the importance which the legislature attached to the time-bar. At the
time when the Equal Pay Act was passed, section 26 of the Limitation Act 1939
(now section 32 of the Limitation Act 1980) provided for the deferral of the
running of a limitation period under the general law in cases of fraud and
concealment. There was, however, no corresponding provision applicable to equal
treatment claims under the Equal Pay Act, even in cases of concealment. Over the
years Parliament has introduced other grounds of deferral into the general law of
limitation. It is, however, notable that the possibility of deferring the running of
time was not introduced into the Equal Pay Act until 2003, when it was amended
by statutory instrument. Even then it was limited to two narrowly defined
categories of case, namely those in which the facts giving rise to an equal
treatment claim were deliberately concealed by the employer from the employee
during the subsistence of the employment relationship, and those in which the
employee was under a disability during the period of six months after the
termination of the relationship or (in a concealment case) after the day on which
she discovered the facts deliberately concealed from her. All of these provisions
have been re-enacted in substantially the same form by sections 120, 122-123 and
129-130 of the Equality Act 2010.
Page 20
45. Accordingly the three salient features of the Equal Pay Act for present
purposes are: (i) that it provides in the public interest as well as in the interests of
parties for particular categories of employment disputes to be referred to a
specialised tribunal, applying a procedure particularly adapted to the hearing of
such disputes, (ii) that it lays down in the interests of employers a highly restrictive
regime of limitation for cases brought in the specialist tribunal, and (iii) that it
contains a careful and qualified definition of the circumstances in which older
claims can be brought in the specialist tribunal. Parliament cannot rationally be
thought to have intended that a far less restrictive regime should apply at the
unfettered option of the employee, by the simple device of bringing his claim in a
court of general jurisdiction which is less appropriate to such claims because it has
neither the same specialist experience nor the specially adapted procedures thought
suitable for this class of case.
46. Nonetheless, in conferring jurisdiction over equal treatment claims on
employment tribunals Parliament left in being the jurisdiction that the ordinary
courts had always had over contractual disputes arising out of employment.
Moreover, the protection of section 2(4) is not available in equal treatment cases
before the courts, because it is in terms confined to cases before the employment
tribunal (compare section 2(5) in which the restriction on the period in respect of
which damages may be awarded is applied to such claims wherever brought). The
only rational answer to this conundrum lies in the application of section 2(3). If an
action founded exclusively on a breach of the statutory equality clause were
brought in court before the time limit had expired for bringing it in an employment
tribunal, one would expect it to be struck out as a matter of course under section
2(3) so that it could be brought in the appropriate forum. It could, in the language
of the subsection, “more conveniently be disposed of” by an employment tribunal.
If the claim is brought in court after the tribunal time limit has expired, the test is
exactly the same, but the circumstances are in one respect different. The decision
whether to strike out will still depend on whether it can “more conveniently be
disposed of” by an employment tribunal, but the employment tribunal will
inevitably have to dismiss the claim because of the time-bar. The Court of Appeal
took the view that for this reason a claim could only very rarely be “more
conveniently disposed of” in a tribunal which would be bound to dismiss it as
time-barred. They appear to have had in mind rare cases where the mere fact of
bringing the claim in court could be characterised as an abuse of the court’s
process. In this court, the majority considers that a claim can never “more
conveniently be disposed of” by an employment tribunal if it would be time-barred
there. With respect, I cannot accept either version. Both of them depend upon the
proposition, which I understand to be accepted by the majority, that the notion of
“convenience” in section 2(3) is directed only to the efficient distribution of
judicial business between the available forums. I think that this is far too narrow a
test, because it excludes the broader interests of justice which in my opinion
should be decisive. “Convenient” is used in section 2(3) in a sense analogous to
that which it has in the expression “forum non conveniens”. The question is
Page 21
whether the disposal of the claim in an employment tribunal is appropriate in the
interests of justice: see Spiliada Maritime Corporation v Cansulex Ltd [1987] AC
460, 474-475 (Lord Goff).
47. I would accept without hesitation that the fact that the claim will be timebarred in the employment tribunal is a highly relevant factor, but I cannot accept
that it is conclusive or nearly so. As I have pointed out, the dismissal of a claim
because it is time-barred is a disposal. It may, depending on the circumstances, be
a just disposal. I would not wish to press the analogy with forum non conveniens
too far, for it is only an analogy. But, as Lord Goff pointed out in the Spiliada
case, it is not necessarily unjust to require a claim to be heard in a jurisdiction
where it would be time-barred, if the nature of the case is such that that is the more
appropriate jurisdiction: see pp 483-484. Indeed, the case for doing so is likely to
be stronger where (i) the alternative and appropriate forum is another English
forum, provided by law for this very class of case; and (ii) the court is seeking to
give effect to the policy of the legislature in imposing a time-bar on claims brought
in the appropriate tribunal. In such cases, the justice to the claimant in having his
claim determined by a court on its merits without regard to the time-bar is exactly
commensurate with the injustice to the employer of being deprived of a defence.
Other relevant considerations which seem to me to bear on the justice of requiring
the claim to be brought if at all in the employment tribunal include: whether the
claimant acted reasonably in failing to bring his claim before the appropriate
tribunal in time; whether the passage of time since the expiry of the tribunal timebar has made the issue substantially more difficult to determine justly; and whether
the employer would be exposed to a substantial liability in costs in court which he
would not have faced in the tribunal. The latter is likely to be a particularly
significant factor in a case where the litigation is funded under a conditional fee
agreement. It will be apparent that I have considerable sympathy for the approach
adopted by Slade J in Ashby v Birmingham City Council [2012] ICR 1, although I
would not limit the range of relevant factors to those which arose on the facts of
the case before her.
48. If, as I have suggested, the limitation provisions of the Equal Pay Act
reflect the policy of the legislature as to the circumstances in which an employer
ought to be exposed to stale claims, it must in my opinion be wrong to treat the
only statutory mechanism available for giving effect to it as inapplicable in the
precise circumstances which engage that policy. The view that court proceedings
in support of an equal treatment claim should rarely or never be struck out where
they would be time-barred in an employment tribunal has the effect of making the
statutory protection of the employer available to him only at the option of the
employee. The effect is to deprive it of most of its content. Indeed, on this view, a
claimant in a “concealment” or a “disability” case could bring his claim in an
employment tribunal and, having failed to persuade the tribunal that he was
entitled to defer the running of time, then bring precisely the same claim in court
Page 22
Page 23
with the benefit of the ordinary limitation period of six years and the broader
provisions for deferral. The employment tribunal, he would argue, had only
decided upon the applicability of the tribunal time-bar, which had no relevance to
proceedings brought in another English jurisdiction.
49. I find it difficult to derive any assistance on these points from Restick v
Crickmore [1994] 1 WLR 420, to which both the Court of Appeal and Lord
Wilson (paragraph 28) attach importance. In that case, the Court of Appeal
criticised the decision of the judges below to strike out proceedings which should
have been brought in the county court, in circumstances where they would have
been time-barred there. That was a decision about a very different statutory
scheme, whose critical feature was the existence of a statutory power to transfer
the proceedings to the county court instead of striking them out. Since a transfer
would have preserved the plaintiffs’ limitation position, it was held to have been
the appropriate course.
50. I agree with the majority that to strike out the claim would not be
inconsistent with the EU principle of equivalence, for the reasons given at
paragraphs 32-34 of the judgment of Lord Wilson.
51. I would for these reasons have allowed the appeal and remitted the case to
the High Court to determine whether in the interests of justice it should be allowed
to proceed there.
