Can Claimants doing different work bring equal pay claims on the same ET1 claim form?
No, held the EAT in Farmah & ors v Birmingham City Council & ors.
The appeals concerned a single ET1 claiming equal pay used by a number of Claimants who performed different work from other claimants within the same ET1.
The EAT considered r.9 ET Rules which states two or more Claimants 'may make their claims on the same claim form if their claims are based on the same set of facts'. If not, they are an irregularity under r.6 and may be struck out.
The EAT found Claimants performing different work or comparing themselves with a different comparator to other Claimants in the same ET1 breached r.9.
The EAT gave guidance on whether claims in breach should be struck out, stating tribunals should assess the following in turn:
1) The seriousness of the breach;
2) Consider the breach, asking whether:
i. The legal representatives considered r.9 was satisfied;
ii. The legal representatives can demonstrate why they considered the inclusion of the claims satisfied r.9;
iii. If not, and there is no justifiable explanation for the failure, this is a factor which favours striking out the claim;
3. Whether there would be any prejudice to the parties in striking out the claim;
4. Any other relevant factors, including the need to deal fairly and justly with claims.
Tribunals must consider the overriding objective and remember underpayment of fees that would have been paid if ET1s were issued separately is a highly material factor.
Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.