Rule 9 of the Tribunal Rules 2013 allows two or more claimants to make their claims on the same claim form (ET1) if their claims are based on the same set of facts. This has been advantageous for claimants, especially since the introduction of tribunal fees, as multiple fees are lower per claimant than separate individual claims would be.
Five cases regarding equal pay claims were heard together at the Employment Appeals Tribunal (EAT) with the key question being whether equal pay claims involving claimants doing different work could be included in the same claim form under rule 9. The cases fell into two groups:
Three of the cases involved claims brought by predominately female staff working for supermarkets. These women were working in different jobs (for example, check-out operator and someone working on the shop floor) and claimed that they were performing equal work to men working in depots. Within the same claim form some men also contended that if the female claimants were successful then they would be entitled to equal pay with the women as they were undertaking equal work.
The other two cases involved women doing different jobs in local government who claimed that their work was equal to men performing a variety of different jobs.
The EAT held that rule 9 required a three-step approach:
a tribunal must identify the complaints that are being raised;
a tribunal must then identify the facts that the complaints are based upon; and
at this stage a tribunal must determine whether the facts are the same for each compliant.
After applying this approach the EAT found that in relation to all of the cases that the women making claims were doing different work and therefore all had to have different male comparators. Therefore the claims were not based on the same set of facts. The additional claim made by the men in the supermarket cases (essentially "piggy-backing" on the women's claims) was, for the same reason, also not based on the same set of facts. The EAT did go on to provide guidance on a tribunals discretion to strike out a claim or waive the irregularity if it considers it to be just (as provided for by rule 6). The EAT confirmed that tribunals should consider the seriousness of the breach (non-payment of appropriate fees to be deemed as serious), consider the circumstances of the breach (e.g. if done willingly to avoid paying fees), consider the prejudice to the parties in striking out the claim and considering other relevant factors.
Take home points
If claimants are doing different jobs, require different male comparators or bring their claim on a different basis (for example, arguing a job is of equal value and arguing a job is rated as equivalent will be different) their claims will be based on different facts and so cannot be on the same ET1 form. If such equal pay claims are dismissed then some claimants may find themselves out of time to reissue, especially given that there is no discretion to extend time limits in equal pay cases.
Whilst these were equal pay cases the impact of these cases would equally apply to any claim where more than one claimant is named on the same claim form (for example, claims arising from TUPE or collective redundancies).