ASDA STORES LTD v BRIERLEY & ORS (2016)

An employer appealed against a decision of the Employment Appeal Tribunal that an employment tribunal did not have the power to impose a stay on proceedings before it to enable equal pay claims brought by the respondent employees to be heard in the High Court.

Claims had been brought in the employment tribunal by over 7,000 claimants, overwhelmingly women, employed by the appellant. They worked in hourly-paid jobs in its retail stores. They claimed equal pay with comparators, mainly men, employed in distribution depots. The employer considered the case to be exceptional and of great significance for the retail trade generally, and argued that the claims should be heard in the High Court. It contended before the tribunal that it had the power to stay proceedings indefinitely, thereby compelling the respondents to pursue their claims in the High Court. The tribunal concluded that it had no power to impose a stay for that purpose. The EAT decided that the employer had no arguable case.

HELD: The High Court had jurisdiction under the Equality Act 2010 to hear equal pay cases. It could, in effect, transfer an equal pay claim to the employment tribunal by striking out the claim, provided that it could be conveniently heard in the tribunal. It could also temporarily stay proceedings and refer an equality issue arising in a claim to the tribunal for determination. The striking feature of the legislation, however, was that there was nothing in the primary legislation which either permitted or envisaged a transfer the other way, from the employment tribunal to the High Court. The rule relied on by the employer was the general power to make case management orders in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Sch.1 para.29. In an appropriate case, para.29 did confer a power to stay proceedings, even indefinitely, Dickie v Cathay Pacific Airways Ltd [2005] EWCA Civ 599, [2005] I.C.R. 1436 considered. A claimant who presented a claim to an employment tribunal would necessarily be subject to the proper exercise of a tribunal’s case management discretions. That could include imposing a permanent stay in an appropriate case. However, the question in the instant case was whether the claims could be transferred from one court to another in this country, not to a court in another country, Dickie considered. There was no doctrine of forum non conveniens operating as between domestic courts, and the relationship between them was typically laid down in legislation in one form or another, either primary or subordinate. A power had to be identified which could properly be exercised to achieve the particular purpose being sought. There was a material difference between cases where there were parallel proceedings running concurrently and where there were not. A tribunal could, in parallel proceedings, grant a stay to allow the High Court to determine the issues in dispute. The transfer would normally be expected to be the other way around, but a stay might be appropriate where, for example, the High Court proceedings were further advanced than those in the tribunal. It could be embarrassing, as well as potentially wasteful in terms of time and costs, to have potentially inconsistent outcomes. However, it did not follow that the same power would be available where there were no parallel proceedings giving rise to those concerns. Given the structure of the primary legislation, the tribunal could not use the very broad case management power in para.29 for the purpose of relinquishing jurisdiction to the High Court merely because it considered that court to be a more appropriate forum. It was inconceivable that Parliament, having dealt expressly with the transfer of cases from the High Court to the employment tribunal, would have permitted the power to transfer the other way to be left to secondary legislation. The EAT was right to conclude that the employees had a right to have their claims heard in the tribunal because, in the particular circumstances of the case, there was no statute or rule of law which would permit the tribunal to relinquish jurisdiction in favour of the High Court (see paras 10-11, 15-21 of judgment).

Appeal dismissed

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