Automated Summary
Key Facts
This Employment Appeal Tribunal judgment addresses the interpretation of Rule 9 of the Tribunal Procedure Rules 2013 regarding equal pay claims. The Tribunal held that claims by female employees performing different jobs cannot be included in the same claim form as they are not based on the same set of facts. Similarly, claims by male employees seeking to compare their work with successful female claimants are not based on the same set of facts. The Tribunal determined that including such claims in a single claim form constitutes an irregularity under Rule 9, and while Tribunals have discretion to strike out claims or waive the irregularity, the decision must consider factors including the seriousness of the breach, circumstances leading to the irregularity, and prejudice to the parties.
Issues
- The court examined whether the Employment Tribunal correctly determined that female Claimants performing different jobs could not include their claims in the same claim form, and whether the inclusion of male contingent claims was permissible under Rule 9.
- The court examined whether the Employment Tribunal correctly exercised its discretion in striking out claims in Farmah and Callaghan that were not based on the same set of facts.
- The court assessed whether the Employment Tribunal properly exercised its discretion in not striking out claims in Asda v Brierley, where the Tribunal waived the irregularity under Rule 6.
- The court addressed whether the Tribunal had discretion to strike out claims that were irregularly presented (i.e., not based on the same set of facts) or to waive the irregularity under Rule 6 of the Rules.
- The court needed to determine what constitutes 'the same set of facts' for claims under Rule 9 of the Tribunal Procedure Rules 2013, particularly in equal pay cases where Claimants perform different work or are making contingent claims.
- The court determined the appropriate approach for Tribunals to exercise discretion when deciding whether to strike out claims irregularly brought or to waive the irregularity under Rule 6 of the Rules.
- The court considered whether the Employment Tribunal erred in finding that claims were not irregularly included when 23 Claimants could have been included in one claim form but were instead included with 25 Claimants whose claims were not based on the same set of facts.
Holdings
The Employment Appeal Tribunal determined that Rule 9 of the Tribunal Procedure Rules 2013 requires equal pay claims to be based on the same set of facts to be included in one claim form. Female claimants performing different jobs cannot be included together, and male claimants' contingent claims are not based on the same set of facts as female claimants' claims. The tribunal has discretion to strike out irregular claims or waive the irregularity, considering the seriousness of the breach, reasons for the breach, prejudice to parties, and the overriding objective.
Remedies
The court allowed the Respondent's appeals, dismissed the Claimants' appeals, and remitted the cases to the lower tribunal for reconsideration of whether to strike out claims or waive irregularities.
Legal Principles
- The Equality Act 2010 (section 66) establishes the sex equality clause. Equal pay claims require comparison of the Claimant's work with a male comparator's work to establish whether the work is equal (like work, rated as equivalent, or of equal value). For claims to be joined under Rule 9, the factual basis for these comparisons must be the same.
- The overriding objective of the Rules (Rule 2) requires Tribunals to deal with cases fairly and justly, including proportionately, avoiding unnecessary formality, and saving expense. This principle guided the court's interpretation of Rule 9, emphasizing that the interpretation should be consistent with the Rules' purpose of efficient case management.
- Under Rule 6 of the Rules, Tribunals have discretion to waive irregularities (such as non-compliance with Rule 9) or strike out claims. The court established that this discretion must be exercised judicially, considering factors including the seriousness of the breach, circumstances leading to the breach, and prejudice to parties, with striking out claims being a draconian sanction.
- The court applied a purposive approach to interpret Rule 9 of the Tribunal Procedure Rules 2013, considering the purpose of the Rule and the Rules as a whole, rather than a literal interpretation. The court examined the legislative history, the context of the Rules, and the purpose of Rule 9 to determine that equal pay claims by employees performing different work cannot be joined as their factual bases differ.
Precedent Name
- S.C.F. Finance Co Ltd v Masri
- Blockbuster Entertainment Ltd v James
- Potter v North Cumbria Acute Hospitals NHS Trust
- Redcar and Cleveland Borough Council v Bainbridge
- Harris v Academic Enterprise Trust
- Hamilton v NHS Grampian
- Naif v High Commission of Brunei Darussalam
- Brett v Hampshire County Council
- Isle of Anglesey County Council v Welsh Minsters
- Prest v Mouchel Business Services Ltd
Cited Statute
- Equality Act 2010
- Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013
- Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013
Judge Name
Mr Justice Lewis
Passage Text
- I agree with Mr Jeans that claimants might properly group themselves together as multiple claimants within rule 9 if they in practice undertook the same work because they were, for example, Checkout Operators, but what cannot be done is to bring together in a single claim form equal value claimants whose jobs are different and who rely on different sets of facts as to the work they do.
- Rule 9 of the Rules permits Claimants to include their claims within one claim form if their claims are based on the same set of facts. On a proper interpretation of that Rule, it requires the Tribunal to identify the complaints that the Claimants are bringing and the set of facts needed to establish those complaints and then to consider if those sets of facts are the same. In the context of a claim alleging a breach of an equality clause included in a contract of employment by the 2010 Act, that involves a comparison of work carried out by a person of one gender with the work carried out by a person of a different gender to determine if the work is equal work.
- A complaint by a female Claimant will be based upon a set of facts involving comparing her work with the work done by a male comparator to assess whether the work is the same or broadly similar, or has been rated as equivalent, or is of equal value (in terms of skills, demands and efforts), to work done by a person of a different gender.