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Farmah and ors v Birmingham City Council: implications for multiple claims

Including multiple claims on one claim form can lead to a significant cost saving for a claimant and is often seen in the context of equal pay.  In the case of Farmah and ors v Birmingham City Council the EAT determined whether equal pay claims involving claimants doing different work could be included in the same form.

Background

2013 saw the introduction of costs in the Tribunal, which can make issuing a claim expensive. Multiple claims (where multiple claimants can be put on the same claim form) can make issuing a claim much cheaper.

Rule 9 of the Tribunal Rules 2013 allows two or more claimants to make their claims on the same claim form if their claims are “based on the same set of facts”.

If two or more claimants wrongly include claims on the same claim form the Tribunal has discretion to either strike out the claim or waive the irregularity under rule 6.

In equal pay claims, it is usual to issue multiple claims. Often claim forms will be presented on behalf of many claimants carrying out different jobs and in different grades. As more and more claimants join in ongoing equal pay claims, fresh claim forms are issued with more claimants on them. Claim forms can also include ‘piggyback’ claims, which are brought by men but which are dependent upon the success of the female claimants.

The facts

In Farmah, and four other cases concerning equal pay, the EAT considered whether equal pay claims involving claimants doing different work (for example the claim of a checkout operator and someone working on the sales floor) were “based on the same set of facts” and so could be included on the same claim form under rule 9.

The EAT held that claims by female claimants doing different work were not based on the same set of facts. This was because there had to be a comparison between the different work done by the women with the work of the male comparator.

Where claimants are doing different jobs, are on different grades, have different employment histories, if they seek to compare themselves with different comparators, or if they bring their claims on a different basis, the claims will be based upon different sets of facts. Similarly, ‘piggyback’ claims will not be based on the same set of facts.

The EAT went on to give guidance to Tribunals on the exercise of their discretion under rule 6 in such cases. They confirmed that the Tribunal should:

  • consider the seriousness of the breach (failure to pay the appropriate fees is a serious matter);
  • have regard to the circumstances of the breach (for example if it was done knowingly to evade paying the full fees);
  • consider the prejudice to the parties in striking out the claim; and
  • consider any other relevant factors, including the need to deal fairly and justly with claims.

Conclusion

Farmah does not just affect multiple equal pay claims brought in a Tribunal. It affects any claim where more than one claimant is named on the same claim form (such as those arising from a TUPE or collective consultation process).

This decision could have significant consequences for claimants and their solicitors. It will be necessary to fully consider the facts and employment histories of all claimants before deciding whether to issue multiple claims.

If the claim is dismissed because the same set of facts do not apply, those claimants who are out of time will not be able to re-issue the claim because there is no discretion to extend time in equal pay claims. Those re-issuing claims will have to pay new fees all over again.

It is yet to be seen whether this case is appealed, given the significant impact of the decision.

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further