Weightmans 'striking' success in novel argument

A council succeeded in a novel 'abuse of process' argument, effectively dismissing a number of equal pay claims brought before Sheffield Employment…

In a Judgment handed down by the Employment Appeal Tribunal just a few weeks ago, Jawaid Rehman, an Associate from Weightmans’ Birmingham office, acting on behalf of Bassetlaw District Council, succeeded in a novel ‘abuse of process’ argument, effectively dismissing a number of equal pay claims brought before Sheffield Employment Tribunal. This victory could well have an impact on equal pay claims against Local Authorities throughout the UK.

An equal pay claim involves an employee alleging that their pay is lower than that of a comparator, being someone (or a group of people) who receives some element of higher pay than the claimant. In practice, it has been hard to pin down who is alleged to be the comparator in many of the multi-claimant equal pay claims we have defended, and some claimant representatives have tried to change the comparators relied upon as the claims progress.

In this claim, the Claimants were employed by the Council as Housing Needs Officers and they were all members of a Trade Union. Originally, they raised a grievance regarding pay and named the Pest Control Officers as a comparator. However, when the Claimants eventually brought their claims, they were formulated on the basis that they were not receiving equal pay in respect of various other comparators, not including the Pest Control Officers. The case proceeded over the following months, via a number of preliminary hearings.

The Council then raised an argument that the Claimants and their cited comparators were rated differently under a valid job evaluation scheme. This argument, if successful, would have provided a defence to the claims. The Claimants subsequently notified the Employment Tribunal that they wished to withdraw their claims and bring new actions, this time citing the Pest Control Officers as their comparators. The Council applied for the first set of claims to be dismissed as they had already been withdrawn. The Council also argued that the second set of claims should be dismissed as an abuse of process, as the comparators cited in the second set of claims were known to the Claimants at the time the original claims were submitted. Therefore not only could the Claimants have pursued the second set of claims in the original proceedings, but they should have done so.

The Employment Judge at Sheffield Employment Tribunal agreed with the Council and also found that the late change of attack amounted to unjust harassment of the Local Authority. The Claimants appealed to the EAT primarily on the basis that the new claim also related to an additional element of pay. The EAT dismissed the appeal and agreed with the Judgment of the Employment Tribunal. The claims against the Local Authority were not allowed to proceed.

The sting of equal pay claims has led to some Local Authorities having to dispose of major assets to raise the money to pay Claimants. Lawyers acting on behalf of Respondents therefore have worked hard to think up constructive ways to undermine speculative or unworthy claims. The experienced Equal Pay team at Weightmans has been at the forefront of this process, with significant success. In the past, the introduction of new comparators by Claimants in equal pay disputes has been commonplace. This case suggests that running similar abuse of process arguments in future could limit the huge equal pay liabilities faced by employers around the country.

The case was conducted by:

Jawaid Rehman, Associate, jawaid.rehman@weightmans.com and
Sam Harris, Paralegal,

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