The Supreme Court has confirmed that women can have up to six years to challenge breaches of equal pay legislation if they bring a claim in the high court rather than the employment tribunal. That gives women much longer to enforce their rights to equal pay against their former employers.
This latest ruling involves 174 former employees of Birmingham City Council who left its employment at various dates between August 2005 and May 2008. They did not issue proceedings until July 2010, well outside the time limit for starting an equal pay claim in the employment tribunal, which is normally six months after the end of the claimant’s employment. However their legal team argued successfully that the wording of the Equal Pay Act did not prevent them from bringing proceedings in the high court within the normal contractual limitation period, which would give most employees six years from the end of their employment to bring a claim.
It is surprising that this point has not been resolved before. The Equal Pay Act (now succeeded by largely equivalent provisions in the Equality Act 2010) has been in force for nearly 40 years. This decision represents, in theory at least, a significant extension of the reach of equal pay legislation. However, even after the introduction of fees next year, the employment tribunal jurisdiction is likely to be strongly favoured by claimants, not least because they are not generally at risk of costs if their claim is unsuccessful. In addition, the rule limiting recovery of arrears of pay to six years prior to the commencement of proceedings provides a strong incentive to issue as early as possible. So while this decision undoubtedly represents a significant victory for the claimants involved, it will not necessarily open the gates to a flood of new claims.