Single claim forms

When lodging a tribunal claim for multiple claimants, the Employment Appeal Tribunal (EAT) has held in the conjoined appeals of Farah and ors v Birmingham City Council; Callaghan and ors v Birmingham City Council; Fenton and ors v Asda Stores Ltd; Asda Stores Ltd v Brierley and ors; Sainsbury’s Supermarkets Ltd v Ahmed and ors that two or more claimants cannot submit single claim forms if their claims are based on a different set of facts. 

Basic facts 

The five appeals in this case concerned claims for equal pay. Three appeals related to claims brought largely by female retail staff working in different jobs in supermarkets who claimed they were performing equal work with men working in distribution centres. The other two appeals involved claims brought largely by women against Birmingham City Council undertaking different jobs who claimed that their work was equal with men performing a variety of jobs. 

Women doing different jobs included their claims in the same claim forms. Some men also included claims within the same claim form arguing that, if the female claimants were successful, then they did equal work with them.  This made financial sense as the fee for issuing a claim form containing multiple claims is much lower than the fees for an individual claim form.  The employers, however, invoked Rule 9.  

Rule 9 

Rule 9 of the Employment Tribunal Rules of Procedure contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 states that two or more claimants "may make their claims on the same claim form if their claims are based on the same set of facts". 

The employers argued that female claimants who were doing different jobs could not include their claims in one claim form, as they were not based on the same set of facts. Likewise, the claims brought by men were based on a different set of facts as they were comparing their work with that of a potentially successful female claimant whereas the female claimants were comparing their work with that done by other men. 

Tribunal decision 

Although one tribunal judge held that there was no breach of rule 9, the others concluded that including different claims on one claim form was “irregular” but nevertheless decided to waive the irregularity. 

EAT decision 

The EAT allowed the appeal holding that claimants can only include their claims within one claim form if they are based on the same set of facts. 

To establish whether they are, tribunals have to first identify the complaints being made by two or more claimants; secondly whether they are based on the set of facts; and thirdly whether the facts are the same. 

If female claimants are doing different jobs, their claims will not be based on the same set of facts as they will be comparing different work with male comparators. Similarly, the claims of male claimants seeking to compare their work with that of other female claimants cannot be based on the same set of facts. 

Consequently, Rule 9 does not permit such claimants to include claims within a single claim form and to do so is an irregularity. However, tribunals have discretion to strike out an irregular claim or to waive the irregularity based on the seriousness of the breach and the circumstances in which it arose.