The Court of Appeal has held that equal pay claims by female supermarket staff could not be "based on the same set of facts" where different claimants did different jobs and relied on different comparators in Brierley v Asda Stores Ltd.
The Asda equal pay claims are brought by thousands of claimants doing a variety of jobs, spread across 22 claim forms. The number of differing job roles performed by the various claimants within a single ET1 form varied from eight to 175. Under rule 9 of the Employment Tribunal Procedure Rules, two or more claimants may present their claims on the same form if they are "based on the same set of facts". At first instance the tribunal held that the claims weren’t similar enough to fall within rule 9 and, exercising its discretion under rule 6 to waive the irregularity, allowed the claims to proceed. This meant that although the existing claims could proceed, further claims would have to be presented singly or in smaller batches. At the time this made a big difference to the fees payable, but once the fees regime was abolished it was far less important.
The Court of Appeal held that claims brought together do not have to arise out of identical factual situations and it was not necessary for the claimants to have identical roles. It was the work that they did and not their job titles that was important. Multiple claims would be allowed where the claimants do work which is the same or very similar so as to be said to be based on the same set of facts. The cases were remitted to the tribunal to proceed on the merits.
Take note: Following Brierley it won't be necessary for claimants to hold identical roles in order to submit claims on the same ET1. However, it is likely that a smaller number of claims will be able to be presented together. If tribunal fees end up being reintroduced it may therefore be more expensive to bring an equal pay claim again.
This article is taken from HR Law - February 2019.
