Equal pay claims and ET1s
The Employment Appeal Tribunal has recently held in the case of Farmah and others v Birmingham City Council that claims for equal pay, involving claimants doing different jobs, cannot be included on the same ET1 claim form under rule 9 of the Employment Tribunals Rules of Procedure 2013.
Under rule 9, multiple claims can be combined if they are based on the same set of facts. With regards to claims of equal pay – comparing a female claimant’s job with that of a male equivalent (and vice versa) – the rules do not apply if the jobs are different as the factual circumstances of the cases are not the same. Therefore, they cannot be compared and Claimants should not combine multiple claims on a single ET1 claim form.
Under the Equality Act 2010, men and women are entitled to equal pay for equal work. Claimants who are seeking to claim equal pay must compare their terms with an individual of the opposite sex in the same employment, carrying out equal work. The three categories of equal work under the act include ‘like work’; ‘work rated as equivalent’ and ‘work of equal value’, and so it follows that the jobs listed on the ET1 claim form must fall into one of these three categories.
Opinion and justification of the Employment Appeals Tribunal (EAT)
Despite claimants arguing that claims involving different jobs were similar enough to be regarded as the ‘same set of facts’ in broad terms, and thus consistent with rules of procedure, the EAT did not support such a view. Instead, the EAT maintained that this would often result in inefficient case management and stated that such cases would constitute an irregularity, whereby tribunals should respond by striking out a claim or waiving the irregularity when rule 9 is not complied with.
The tribunal has the discretion as to whether claims are struck out and considered irregular. The following factors are what the tribunal consider when evaluating whether there is irregularity:
- the seriousness of the breach: consideration of whether claims have been included on the same form incorrectly in order to minimise tribunal fees;
- the circumstance in which the breach arises;
- the prejudice caused to the parties; and
- additional relevant factors: in line with the overriding objective, tribunals should consider the need to deal fairly and justly with claims. Striking out claims may not always be proportionate.
Forward thinking: the implications
It is likely that claimants involved in equal pay cases will be encouraged to make individual claims even in the instance of subtle differences between jobs and job titles between the comparator and the claimant themselves. For employers, this is likely to result in more cases as equal pay claims are increasingly being separated into individual cases in order to distinguish clearly where the same set of facts cannot be used.
If you would like more information, please contact Millie Kempley.