Case No: A2/2010/0078

Neutral Citation Number: [2011] EWCA Civ 732

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT

QUEEN'S BENCH DIVISION

MR C EDELMAN QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Wednesday 18th May 2011

Before:

LORD JUSTICE HOOPER

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Between:

Abdulla and Ors (Appellant)

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Birmingham City Council (Respondent)

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(DAR Transcript of

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Mr Paul Epstein QC and Ms Louise Chudleigh (instructed by Birmingham City Council Legal and Democratic) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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Judgment

( As Approved by the Court )

Crown Copyright ©

Lord Justice Hooper:

1. This is a renewed application for permission to appeal the decision of Mr Edelman QC, sitting as a deputy judge of the Queen's Bench Division. The application was refused on paper. Since that refusal the position has become more complicated because of a decision of Slade J DBE allowing an appeal against a decision of HHJ Owen QC. Both cases raise the same point.

1. Putting it very simply, the High Court and county court have a jurisdiction to deal with contractual claims arising out of employment. The employment tribunal now has the jurisdiction to deal with contractual claims concerning equal pay, that jurisdiction being concurrent with the jurisdiction of the High Court and the county court. Section 2(3) of the Equal Pay Act 1970 provides that a court may direct that a claim in respect of the operation of an equality clause should be dealt with in the employment tribunal if it "could more conveniently be disposed of" in that tribunal.

1. Again, talking in very general terms, the limitation period in the employment tribunal is six months and the limitation period in the High Court and county court is six years. In this case, the case with which I am concerned, the limitation period has expired, and if the case was ordered to be heard in the employment tribunal then inevitably it would be struck out. The claim made by the respondents would be struck out because of the time limit which cannot be extended. The decisions of Mr Edelman and of HHJ Owen and Slade J revealed three possible approaches to the issue. The first approach would be to say that it cannot be more convenient to transfer the case into the employment tribunal if the result of so doing would be that the proceedings would be struck out by the employment tribunal on the grounds that the limitation period had expired. That seems to have been the approach of Mr Edelman.

1. The second approach, the one adopted by HHJ Owen, is to ignore the fact that, if transferred, the proceedings will come to an end because the limited period has expired. The third approach is to say that the court, in deciding whether or not it is convenient, is entitled to take into account the consequence that if the case is transferred to the employment tribunal it will come to an end. Slade J in her judgment refers for example to a situation, which does not apply on the facts of the case with which I am concerned, where parties have deliberately decided not to start an action in the employment tribunal when they could have done so within the time limit and thereafter started in the High Court.

1. I am told that there are a number of cases of this kind. It looks as if this problem is a new problem because traditionally these cases have been brought in the employment tribunal or not at all. Given that it is important that the issue be resolved in an authoritative manner, I grant permission to appeal, but it is my strong view that the appellant will not succeed on the facts of this case in the light of the fact that, whether the first or third of those approaches is adopted, they would lose. I for my part do not think that the second approach has any merit. That will be a matter for the Court of Appeal, but because of my conclusion I have decided that the permission to appeal will be conditional upon the appellant's paying the reasonable costs of the respondents. I reserve to myself any issue relating to those costs. Mr Epstein tells me that there has been a CFA agreement in relation to these proceedings. Of course a CFA is not appropriate when the party will not have to pay the costs.

1. I anticipate, and hope, that the parties can agree a figure bearing in mind that this is a point that can be dealt with comparatively quickly and does not involve, as I see it at the moment, any significant amount of documentation.

1. Subject to the view of the respondents, it is the view of Mr Epstein and my view that the time allowed for this case should be half a day. It is to be listed before a court consisting of at least one member of the court who has experience of employment law. The court should consist either of two Lord Justices and a High Court judge or three Lords Justices.

Order: Application granted