Localism Act 2011 - war of independence

So you have been an independent member of a standards committee under the Local Government Act 2000 - and you notice that there is a similar sort of cove within the new Localism Act 2011. Could that be you? There seems to be some doubt. The difficulty arises because an ‘independent person’ under section 28 of the Localism Act (whose views must be taken into account by the authority in determining member misconduct investigations) must not (among other things) be a member, co-opted member or officer of the authority, or have been so within the five years preceding their appointment.

A co-opted member is defined in section 27(4) of the Localism Act as someone who is not an authority member but who is (among other things) a member of any committee or sub-committee of the authority who is entitled to vote in that forum. There is an identical definition of ‘co-opted member’ in section 49(7) of the Local Government Act 2000.

The problem is that, on a textual analysis, some lawyers have expressed concern that the definitions of co-opted member would prevent current independent members from becoming independent persons, since they could fall within the definition of co-opted member. Against this it has been argued (among other things) that these provisions were intended to catch existing co-opted members and not to create new ones. It has also been queried whether Local Government Act 2000 standards committees are in fact caught by the co-opted member definitions in the current and forthcoming conduct regimes.

The Association of Council Secretaries and Solicitors is looking into the issue and will be issuing its view to its members as soon as it is able. In the meantime, local government monitoring officers will have to dust down their interpretation skills, so that they can make the words stack up reasonably into something which can work effectively in their authorities.

Time out for equality pay claims?

While both the ordinary courts and employment tribunals (ETs) have jurisdiction to hear equal pay claims, in practice that of the ordinary courts ‘has been overshadowed and almost eclipsed by the volume of litigation in the ETs’. So said Lord Justice Mummery in the Court of Appeal when hearing an appeal by Mrs Abdulla and 174 other claimants, formerly employed by Birmingham City Council (pictured). The case was Birmingham City Council v Abdulla and others [2011] EWCA Civ 1412, and judgment (with which Lord Justice Davis and Lady Justice Smith agreed) was given by Mummery on 29 November 2011.

There are limits

The essential issue concerned the difference in limitation periods between actions brought in the ordinary courts (six years from the date of breach under the Limitation Act 1980) and those in the ET for these purposes (six months after the last date on which the claimant was relevantly employed, under sections 2(4) and 2ZA of the Equal Pay Act 1970).

The claimants brought their 1970 act claims in the High Court, alleging failure by the council to pay their lawful contractual due. These claims would have been out of time had they been issued in the ET but they were within time in the High Court.
Concerning the applicable law, Mummery noted that although the ‘Equality Act 2010 (the 2010 act) repealed and replaced the earlier legislation on equal pay and sex discrimination, these cases were brought under the 1970 act, which continues to apply to them’. And the ‘2010 act does not alter the legal position on the particular points arising on this appeal’.

Forum

Section 2(3) of the 1970 act deals with issues of forum. It provides (among other things) that if a court seized of pending proceedings considers that a claim or counter-claim concerning the operation of an equality claim ‘could more conveniently be disposed of separately by an employment tribunal’, the court may direct that such matter be struck out. In addition (and without prejudice to that direction power), where a question arises before the court as to the operation of an equality clause, the court ‘may on the application of any party to the proceedings or otherwise’ refer or direct referral of that question to an ET for determination, ‘and may stay or sist the proceedings in the meantime’.

The appeal

The council brought the appeal against an order made on 17 December 2010 by Colin Edelman QC, sitting as a deputy judge in the High Court where he dismissed with costs the council’s application for a declaration that the court has no jurisdiction or should not exercise the jurisdiction it has to determine the claimants’ equal pay claims. The Court of Appeal upheld the decision of the court below and dismissed the council’s appeal.

As Mummery said, the issue in question ‘is whether striking out in-time equal pay claims in proceedings in the ordinary courts is apt in cases where it is too late to invoke the jurisdiction of the ET by presenting equal pay complaints to it’. The dilemma was that if the court were to strike out these equal pay claims under section 2(3), on the basis that they could be ‘more conveniently’ disposed of in the ET, those claims ‘would have to be rejected by the ET for want of jurisdiction and the claimants would be left without remedy for claims that might otherwise be well founded’.

And (as noted by the deputy judge below) the critical factor for the claimants was that their council employment had terminated more than six months before commencement of proceedings. Edelman had therefore decided that it could not be more convenient for a claim to be disposed of separately by an ET, where the ET could not determine the claim on its merits but would be bound to refuse jurisdiction since the matter was time-barred.

The council had unsuccessfully argued in the High Court that the claims should be struck out since they could more conveniently be disposed of by the expert and specialist ET, and that the expiration of the ET timelimit was an irrelevant factor in the exercise of the court’s discretion under section 2(3) of the 1970 act. However, in the Court of Appeal (and in reliance on a ‘direct parallel’ with Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460 concerning the conflict of laws principle of forum non conveniens), the council argued that the claimants ought reasonably to have presented their complaints to the ET in time, and that the burden was on them to demonstrate that they did not act unreasonably in letting the timelimit expire in the ET.

Decision

Mummery noted that the discretion to strike out is a judicial one and ‘can only be properly exercised for the ­purpose for which it was conferred and in accordance with principles of relevance’.

In analysing section 2(3), the starting point of the court was that the ‘statutory objective is the distribution of judicial business for resolution in the forum more fitted for it’. In the view of Mummery, the expiry of the limitation period for bringing equal pay claims in the ET is ‘a ­circumstance of considerable weight in most cases’…

‘The draconian consequences of striking out the claims in the ordinary courts in these cases would be that (a) the claimants would be deprived of their rights to pursue claims which they had brought in time in a court having jurisdiction to determine them on their merits; and (b) there would be nowhere else available for the claimants to have their claims determined on their merits, the ET being bound to dispose of them for lack of jurisdiction.’

And while the court could well understand the council’s viewpoint that striking out would be a very convenient way of disposing of the claims, the outcome would not be to dispose ‘more conveniently’ in a different forum, it would be to use ‘discretion conferred for the convenient allocation of judicial business to stifle claims that had been made in time’.

Consequently, the Court of Appeal upheld the decision below and found ‘no error of legal principle’ in the deputy judge’s application to it of the facts of the case before him. The court also found no abuse of process in the claimants simply exercising their undoubted right to institute ­proceedings in the High Court in time and then to resist them being struck out.

Mummery expressed the view that the section 2(3) powers to strike out and refer were not ‘principally directed’ to a case like the instant one, since the language suggests it is intended to cater more for cases in which the proceedings in the ordinary courts include mixed claims, and it is more convenient for the equal pay claim to be determined in the ET which has more specialist expertise in these matters.

While this was good news for the claimants, it is not so for the council, particularly in a time of public sector financial austerity. Consequently, following the appeal court judgment, Birmingham indicated a potential appeal to the Supreme Court.

Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors