The Supreme Court’s decision in Birmingham City Council v Abdulla is a significant development in equal pay law, opening the way for many cases which would previously been time barred. The time limit for bringing equal pay claims in the employment tribunal is six months, and unlike other types of discrimination claims, there is no scope in the tribunal rules for an employment tribunal to allow out of time claims on the ground that is just and equitable to do so. However, the mechanism used to implement the right to equal pay is to imply an equality clause into every employment contract – and of course the ordinary courts have jurisdiction to hear claims for breach of contract – for which the limitation period is six years not six months.
This is the route 175 claimants whose claims were time barred in the employment tribunal successfully took in this case. The respondent, Birmingham City Council, asked for their claims to be struck out under a power allowing the court to strike out claims if they can “more conveniently” disposed of by an employment tribunal. This argument failed, with the majority in the Supreme Court taking the view that as Parliament had provided for these claims to be brought in the High Court, the general limitation period should apply. The majority made it clear that a dim view would be taken of claimants who deliberately dilly-dallied in order to go straight to the High Court instead of bringing their claims in the employment tribunal.
Birmingham City Council has subsequently announced that it is going to have cut services and borrow £325m to cover the estimated resulting bill of £757m.