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Court of Appeal dismisses Sainsbury’s attempt to strike out equal pay claims

Makbool Javaid, Partner - Simons Muirhead Burton

The Court of Appeal has rejected supermarket giant Sainsbury’s attempt to challenge an equal pay claim on the grounds that an employment tribunal should have rejected many of the claims on a technicality.

The retailer argued before a tribunal in 2020 that 700 of the 865 claims by shop workers seeking equal pay with warehouse workers should be struck out as the claim forms did not have the reference number of a certificate issued by the Advisory, Conciliation and Arbitration Service (ACAS).

Initially, the employment judge upheld the contention in respect of some of the claims. However, the employees, of retailers including Asda and Tesco as well as Sainsbury’s, appealed to the Employment Appeal Tribunal, which restored the claims. In turn, Sainsbury’s sought to restore the original tribunal’s order.

But in Sainsbury’s Supermarkets Limited v Maria Clark and Ors, Lord Justice Bean, along with Lady Justice Asplin and Lord Justice Nugee dismissed the appeal. In lead judgment, Bean said ’these are highly technical applications lacking any substantive merit’.

He added that the EAT’s construction of the Civil Procedure Rules was the correct one. ‘While a claim form must contain the name and address of each claimant and each respondent, it is sufficient for it to contain the number of an EC certificate on which the name of one of the prospective claimants appeared.

‘Parliament has not stated that a claimant who has in fact complied with the requirement to go to ACAS, and has obtained a certificate to prove it, should nevertheless be excluded from claiming because of the provision of a wrong number.’
Dismissing the claim in a unanimous decision, the judge said: ‘The legislative purpose of s 18A of the 1996 [Employment Tribunals] Act was to require claimants to go to ACAS and to have an EC certificate from ACAS (unless exempt from doing so) before presenting a claim to an ET in order to be able to prove, if the issue arises, that they have done so.

‘I do not accept that it is part of the legislative purpose to require that the existence of the certificate should be checked before proceedings can be issued, still less to lay down that if the certificate number was incorrectly entered or omitted the claim is doomed from the start.’

The next hearing in the claim, which asserts that the work of female store workers is of equal value to those of the male distribution workers, is listed for March 2024.

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