Thursday 22 November 2012 by Dr Nicholas Dobson
When is a limitation time bar not a bar? Answer: when it concerns equal pay. So concluded the majority of the Supreme Court (Lord Wilson, Lady Hale and Lord Reed) on 24 October in the circumstances of Birmingham City Council v Abdulla and others  UKSC 47, Lords Sumption and Carnwath dissenting.
The claimants were former Birmingham City Council employees who brought a High Court equal pay claim against the council founded on alleged breach of contract in the light of the equality clause implied into relevant contracts by the Equal Pay Act 1970. The claimants proceeded in the High Court since they were out of time for the employment tribunal, because such claims had to be presented within six months after the last day of employment.
The council had applied for these claims to be struck out under section 2(3) of the act (the successor of which is section 128(1) of the Equality Act 2010). Section 2(3) of the 1970 act provides that: 'Where it appears to the court in which any proceedings are pending that a claim or counter-claim 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 counter-claim 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.'
The matter came before the Supreme Court after the council's applications failed in the courts below. However, once again the majority of the Supreme Court did not see things the council's way.
Lord Wilson (who gave the lead majority judgment) held 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'. In his view, the term 'conveniently' in section 2(3) 'mandates a straightforward practical inquiry into the forum more convenient for investigation of the merits', and is analogous to the practical inquiry attending the permission given to a claimant under Civil Procedure Rule 7.3 to 'use a single claim form to start all claims which can be conveniently disposed of in the same proceedings'.
But: '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.' Unusually for the Supreme Court, one of their lordships was accused of suggesting 'an unacceptable degree of violence'.
Fortunately, however, this was merely in an interpretational context where Lords Sumption and Carnwath had considered that the proper operation of section 2(3) of the 1970 act requires what Lord Wilson referred to as a 'multi-factorial inquiry' into all features which might bear upon whether in the interests of justice a claim should be struck out. It was this aspiration 'to attribute a greater degree of efficacy' to relevant limitation rules which Lord Wilson considered would treat section 2(3) with the 'unacceptable degree of violence' mentioned. His lordship would therefore 'deprecate a multi-factorial inquiry into what Lord Sumption 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'.
However, Lord Wilson did point out that nothing could detract from the inherent jurisdiction of the court to strike out a claim on the operation of an equality clause if it were an abuse of process. An example might be that of a claimant who had been invited to present an employment tribunal complaint in time but who had spurned the invitation in order to secure 'an illegitimate advantage' by bringing the claim before the court.
As to costs, Lord Wilson said: '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… 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.'
And even where a tribunal claim is time-barred the court may still (under section 2(3) of the 1970 act and its successor, section 128(2) of the 2010 act) refer to the tribunal a question as to the operation of an equality clause. But there are of course different ways of seeing things, and Lord Sumption gave cogent justification for his view that to regard 'convenience' as directed only to the efficient distribution of judicial business between available forums 'is far too narrow a test'. This is because it excludes 'the broader interests of justice' which in his view should be decisive.
Nevertheless, it is of course goals scored that determines the match and, unfortunately for the council, this proposition lost 3-2.
Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors