A landmark decision has confirmed that employees have potentially six years to bring an equal pay claim.
Claims for equal pay can be brought either through an Employment Tribunal or through the ‘ordinary courts’ (i.e. the County and High Courts). Historically they have, however, in practice been brought through the Tribunals. The choice of venue may be of significance, as it was in this case, as an employee only has six months to present an equal pay claim in an Employment Tribunal but six years to bring a claim through the ordinary courts. As a consequence it is, therefore, possible for proceedings to be commenced in time in the ordinary courts after the time for presenting a claim in an Employment Tribunal has expired.
The ordinary courts have, in all cases, the discretion to strike out an equal pay claim, if it could be more conveniently dealt with by an Employment Tribunal. They also have the discretion to refer the claim to an Employment Tribunal and place on hold the court proceedings pending the Employment Tribunal’s decision.
The question the Court of Appeal had to decide in this case was whether the ordinary courts should strike out a claim and, thereby deny the employees in question of a remedy, where the time for presenting a claim in an Employment Tribunal had expired.
The Court of Appeal said that when an ordinary court exercises its discretion to strike out a case the fact that an employee would be deprived of their right to pursue a claim is a relevant factor which should be taken into account and given considerable weight in most cases. Accordingly, in most cases an employee will have six years to bring an equal pay claim.
Following the decision in this case, it will be more important than ever for businesses who acquire employees under TUPE to obtain appropriate indemnities to protect themselves against liability for equal pay claims.
