Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary
Should the Asda equal pay claims in the employment tribunal be stayed, in effect compelling the Claimants to pursue High Court proceedings?
No, held the Court of Appeal in Asda Stores v Brierley.
There are currently over 7,000 equal pay claims against Asda. The claims allege the work the Claimants do is of equal value to their comparators, and yet their comparators are being paid substantially more than they are. The claims are being defended.
Asda made an application, in effect, to stop the claims proceeding in the employment tribunal. It was accepted that the employment tribunal had no power directly to transfer the claim to the High Court. But Asda contended that the employment tribunal had the power to stay proceedings indefinitely and, if it exercised that power, the Claimants would be compelled to go to the High Court if they wanted to pursue their claims.
The employment tribunal rejected the application, concluding that it had no power to impose a stay for the purpose sought and even if it did, it would not be appropriate to exercise that power in the present case. Asda's appeal to the EAT was rejected.
Asda appealed to the Court of Appeal. Asda's case was that, although, in most cases, the employment tribunal is well suited to hear an equal value claim, the present litigation was exceptional. It said that this was the most important, complex and financially significant equal pay claim ever pursued in the private sector with ramifications, not only for Asda, but the retail trade generally. It also submitted that there were very complex points of law which would need to be resolved, and a High Court Judge would be better suited to decide them than an Employment Judge.
The Court of Appeal rejected the appeal. It was true there was power to stay proceedings, even indefinitely; but this should not happen in the present case. It would be prejudicial to employees. They would have to start proceedings again with additional stress, court fees, limitation issues and the risk of costs if they lost. Finally the Employment Judge had exercised his discretion properly, and had considered all the issues. He was entitled to take the view that an employment tribunal was perfectly capable of handling the claims and it would not be appropriate to "transfer" them.
Elias LJ expressed the view that the assumption that Employment Judges would not be up to the task did less than justice to the quality of some outstanding judges who sit in the employment tribunals.