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Supreme court judgment may lead to more equal pay claims

The award winning 2010 movie Made in Dagenham chronicled the struggle of women to achieve equal pay with their male counterparts in car manufacturing.   Their action resulted in the passing of the Equal Pay Act 1970 (now subsumed and re-enacted in the Equality Act 2010) and enshrined the principle that men and women should receive equal pay for work of equal value.

This week the Supreme Court has ruled that more women than ever before will be able to sue their employers on the grounds that their male colleagues have, unjustifiably, been paid more for doing equivalent work.

In Birmingham City Council v Abdulla and others the Supreme Court was asked to rule on an appeal brought by the Council in High Court cases involving 170 women (and 4 men) who had been employed by the council in occupations traditionally dominated by women, like care home assistants, cleaners and cooks, arguing that their pay and benefits breached the Equal Pay Act by being significantly lower than those in stereotypically “male” occupations, such as refuse collectors and road workers, that had been rated as equivalent in the Council’s own terms and conditions.  The employees, in essence, allege that Birmingham employed them on work of rated as being of equal value to that of certain men but paid them less. 

Equal pay claims under the old Equal Pay Act, and now under the corresponding provisions of the Equality Act, are unusual in that they can be brought in either the Employment Tribunals, where claimants normally have up to six months from the end of their employment to bring a claim, or in the civil courts (i.e. the county courts and the High Court), where the time limit for bringing claims is a considerably more generous six years.

In this case, the employees were well out of time for bringing a claim in the Employment Tribunals, having each left employment between 2004 and 2008, and so brought their claims in the High Court under the six year limitation rule.

The courts have the discretion when they hear equal pay cases to strike out claims that could more “conveniently” have been commenced in the Employment Tribunals.  The Council applied to have the claims struck out by the High Court on that basis.  If the council had been successful, this would have meant that the claims would have been sent to the Employment Tribunal, and then automatically rejected for being out of time.  The High Court refused to strike out, however, so the Council appealed, first to the Court of Appeal, who also ruled against the Council, and then to the Supreme Court.

The Council lost at the Supreme Court too.  The majority of judges there held that equal pay claims, which would have been out of time in an Employment Tribunal, can proceed in the High Court. The court held that such claims can never be more “conveniently” disposed of by an Employment Tribunal when they would be automatically thrown out there for being out-of-time.

The practical impact of this decision remains to be seen.  The Employment Tribunal, a relatively less formal forum where, unlike in the county courts and the High Court, the loser in litigation is not normally required to pay the winner’s legal costs, will undoubtedly remain the primary avenue for these claims and so a rapid increase in equal pay actions as a result of this is unlikely. 

But, crucially, employees will no longer be forced into making a decision quickly and will now have up to six years to reflect on, and perhaps investigate, the issue of their old contractual benefits after leaving any given employment.  This may drive more to the courts. In those circumstances, in the long run, it is quite possible that this week’s Supreme Court decision will mean more equal pay claims for employers to defend.

Martin Pratt

Martin Pratt

Associate of Lester Aldridge LLP, Martin advises employers and executives nationally and internationally on employment law issues. Martin is also an experienced trainer, giving in-house seminars to employers on diversity & equality, performance management, discipline and other labour law topics.

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