Birmingham v Abdulla – There may be trouble ahead…

Judgement has just been handed down in this landmark case which effectively extend the right to bring claims under equal pay legislation from six months to six years.

The decision has significant repercussions across a range of legal issues:

The Supreme Court has (by a narrow majority) increased the limitation period to six years bringing it into line with contractual disputes and out of the exclusive jurisdiction of the Tribunals.

The Equal Pay Act 1970 and latterly the Equality Act 2010 imports an implied term into contracts of employment (including the non-existent contracts) a term entitling that employee to equal pay for like work.

The primary consideration for the Supreme Court was the proper construction of the phrase “more conveniently” in s.2(3) of the EPA 1970 and whether that entitled a claimant to bring a claim outside the six month time limit in another forum.  The argument was that it could never be “more convenient” to bring an action in the Tribunal, if it was  time-barred.

There are, of course, significant advantages in bringing an equal pay claim in the Tribunal (as long as it is within six months) – not least of all because the general rule that “costs follow the event” is displaced in the Tribunal. It is unlikely therefore that the civil courts will see a surge in the numbers  of current equal pay claims.

But danger may lie ahead for solicitors instructed in employment disputes years ago where there was an actual or potential equal pay claim which was not pursued because it was outside the Tribunal six-month limitation period.

Solicitors whose client files have been put in storage now find themselves faced with the decision as to whether to review those files and resurrect that shelved equal pay claim; or face potential negligence claims themselves down the line for failure to prosecute equal pay claims long-since forgotten.

For more information, view the full judgment in Birmingham CC v Abdulla [2012] UKSC 47.