Mrs A Ahmed & others v Sainsbury’s Supermarkets Limited and 1 other — 2019

This preliminary hearing before Employment Judge Camp, sitting alone in Birmingham on 8 and 9 April 2019, concerned the presentation of a very large number of equal pay claims under rule 9 of the Employment Tribunal Rules of Procedure 2013 and the consequences under rule 6 if claims had been wrongly combined on the same form. The respondents conceded that 38 claims on 14 claim forms were regular. The remaining disputed claim forms were challenged as irregular, and the tribunal also considered whether any irregularity should lead to strike-out or costs.

The tribunal held that the disputed claim forms had been presented in breach of rule 9 and that all claims on those forms were irregular. It rejected the argument that only the claimant whose presence caused the problem was affected. In equal pay claims, the relevant question was what work the claimant was relying on, and the tribunal found that the claimants on the disputed forms were not all relying on the same set of facts. It held that Customer Service Assistants and General Assistants were doing materially different work, that the same was true of local Customer Service Assistants and General Assistants, and that the different Team Leader roles were also materially different. It also held that the work of a General Assistant was not essentially the same as that of a Warehouse Assistant. In relation to Ms Oliver on the Carr claim form, the tribunal found it more likely than not that most of her work was online shopper work and that this was not sufficiently similar to the work of the other claimants on that form.

The tribunal rejected the submission that a claimant with work in two different jobs could share a claim form with a claimant whose claim related only to one of those jobs. It held that each claimant had one claim encompassing all of the work complained of, so if that claim was based on materially different work it was not based on the same set of facts as another claimant's claim. It treated the relevant authorities, including the earlier Brierley and Farmah decisions and the Court of Appeal's reasoning on rule 9, as supporting that conclusion.

On rule 6, however, the tribunal decided that the irregularities should be waived and that no claim should be struck out. It found that the breaches were not wilful or reckless, that the claimants' solicitors genuinely believed they were complying with rule 9, that a fair trial remained possible, and that the respondents would not suffer significant prejudice. By contrast, striking out would have caused substantial prejudice to the claimants, including limitation problems for some reissued claims and loss of part of the claim period for others. The tribunal also held that rule 6(d) did not create a free-standing power to award costs: any costs order still had to satisfy the costs rules, and no unreasonable conduct was shown. The respondents' costs request was therefore refused.