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Equal pay victory opens the way for ex-employees

Case 'would not have happened' under Jackson regime

5 December 2011

Thousands of female former council employees could bring equal pay claims dating back up to six years as a result of a Court of Appeal ruling.

Birmingham City Council failed to persuade appeal judges to strike out a claim by a group of 174 women last week, who wanted their claims to be heard at the High Court rather than at an employment tribunal.

They left their employer more than six months ago, barring them from bringing their claims to an employment tribunal and instead sued Birmingham for breach of contract at the High Court.

Chris Benson, partner at Leigh Day & Co, acted for the women, who worked for the council as cleaners, cooks, catering and care staff and are seeking compensation for bonuses paid to male staff in similar grade jobs, such as rubbish collection.

The council claimed the civil courts did not have jurisdiction to hear the claims.

Benson said the decision “could lead to many other claims coming forward as, for decades, male council workers could earn thousands on top of their salaries in bonuses, despite being on the same pay grade as their female colleagues.

“In some councils these inequalities have only recently been phased out and in other cases the inequalities amazingly still exist.”

Benson said Leigh Day & Co had several groups of clients in the West Midlands, several more in the North West and one in London, a total of around 1,000 people who could claim as a result of the Court of Appeal ruling.

However, he said the number of historic equal pay claims based on breach of contract would be much smaller than those currently going through employment tribunals, with Birmingham facing around 5,000 of these.

Benson added that the latest claims had been funded on a conditional fee basis, backed by ATE insurance, and “would not have happened” if Lord Justice Jackson’s reforms were in place.

“The cost would have been too much for the workers,” he said. “The size of the insurance premium meant that each worker would have to contribute just under £1,000.”

Delivering judgment in Birmingham City Council v Abdulla and others [2011] EWCA Civ 1412, Lord Justice Mummery said the jurisdiction of the ordinary courts to determine equal pay claims had been “overshadowed and almost eclipsed” by the volume of litigation in the employment tribunals.

He concluded: “For the court to exercise its discretion so as to leave the claimants without the possibility of a determination on the merits in either jurisdiction does not seem to me to be what parliament intended when it gave claimants a jurisdictional choice.

“Still less does it seem to be a sensible or just outcome in the majority of cases.”

A spokeswoman for Birmingham City Council said: “We are disappointed by the judgment and are currently considering our next step, which could include an appeal.”

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