More uncertainty over equal pay

Scotland

In a frustrating decision for employers, (Birmingham City Council v Abdullah), the Supreme Court has ruled that equal pay claims which were out of time in the employment tribunal may be raised in the civil courts. The decision causes further uncertainty for public sector employers in relation to flushing out the scope of future claims. Not only have councils had to deal with first wave equal pay claims and second wave claims (which were raised post single status), in addition to the male "piggy back" claims, but they will now face further claims from former employees potentially stretching back five years. Given the amount of claims that have already been raised or dealt with in some way, there may not be too many new claimants to surface. This case will be more relevant to Councils where mass litigation is still outstanding and there has been a lack of engagement with the Unions. We also have to remember that the Claimants in this case are only over the first hurdle. Their substantive case still has to be considered.

Claimants who do wish to raise an out of time claim in the civil courts will still need to overcome considerable hurdles. It is by no means automatic that they will be able to proceed. Factors which a court would take into account are:

whether there was any attempt to conceal the information by the employer;
how readily available support was made to the Claimants from the Union;
the transparency of the system; and
how quickly the Claimants took action once they became aware of the problem.

Another critical factor to consider is that of costs. Civil litigation is much more expensive than the Tribunal system with a bigger risk to the Claimants or Unions that costs could be awarded against them if their claim is unsuccessful. The decision does say that if the Court found that the Claimant could have reasonably raised the claim in the Tribunal then costs could be awarded against them; this must be a deterrent against speculative claims being raised.