Last week (in Farmah & ors v Birmingham City Council & ors) the EAT gave an important Judgement in five different multiple equal pay claims, including the large scale claims against Asda.
The ET Rules allow multiple claimants to make their claims on the same claim form if their claims are based on the same set of facts. ET fees per person are lower in multiple claims.
Asda complained about the inclusion, on the same claim form, of multiple claimants with different jobs and with claims on different legal bases. Asda also contended that the issuing of claims in this way led to an underpayment of approximately £650,000 in ET fees.
The EAT agreed and held that including multiple claimants doing different work on the same equal pay claim form is a breach of the Employment Tribunal Rules.
This decision is entirely logical for claims like those facing Asda, where largely female retail staff working in a variety of jobs in supermarkets claim that they are performing work of equal value to a largely male workforce in a range of different warehouse jobs.
The EAT has sent the cases back to the ETs to decide whether they should be struck out because of the breach of the ET Rules. The EAT noted that the underpayment of fees will be a highly material factor in deciding whether to strike out the claims. It also gave further guidance on the factors ETs need to consider.
Given that Asda faces potential liabilities of over £100 million, the stakes could not be higher. We will of course keep you updated.