Employment Appeal Tribunal
On a proper construction, the Employment Act 2002 (Dispute Resolution) Regulations 2004 reg.9 required that at least one of the employees identified to the employer in writing by the union representatives must be a claimant. The words "the employee having the grievance" in reg.9(1)(b) meant the employee who later made a claim.
HELD: (1) The tribunal's conclusion that the time limits in s.32(3) did not apply was misconceived. Regulation 9 provided an alternative way of complying with Sch.2 para.6. It meant that a claimant whose grievance was lodged through a reg.9 procedure was deemed to have complied with Sch.2 para.6 and therefore could satisfy s.32(3)(a); but the obligation to satisfy s.32(3)(b) remained. The fact that s.32(3) did not specifically refer to the collective grievance mechanism, or that no time limits were fixed in reg.9, was irrelevant. On a proper construction, reg.9 required that at least one of the employees identified to the employer in writing by the union representatives must be a claimant. The words "the employee having the grievance" in reg.9(1)(b) meant the employee who later made a claim. Accordingly the representative must identify in writing the employees on whose behalf he was raising the grievance, and that must mean all the employees including those raising a statutory grievance who subsequently became claimants. Regulation 9 required the union representative to identify each party who was to be treated as having complied with the statutory grievance procedure, and s.32(3)(b) required that that must be done within the statutory time frame. It followed that the seven who were identified fell within the terms of the regulation, but not those whose names were only identified after December 27. (2) There was no proper basis on which the three who lodged their questionnaires before December 27 could be treated as being part of the collective grievance; they could not be said to be unilaterally associating themselves with the collective agreement when the union representative taking responsibility for pursuing the grievance had never identified them. However, the tribunal was entitled to find that the union representatives were acting as agents for the three individuals and had lodged a grievance on their behalf. A reasonable employer would appreciate that the three would have anticipated that their claims would be dealt with through the collective process. There was no reason why the grievance already lodged by the union could not be treated as the relevant copy of the grievance for the purposes of Sch.2 para.6, Canary Wharf Management Ltd v Edebi (2006) ICR 719 EAT considered. Therefore, the tribunal only had jurisdiction to hear claims from the 10 claimants who had been identified satisfactorily by December 27. (3) The cause of action arose after the 2006 Regulations came into force, when the actual payments were made, Gloucester Working Men's Club & Institute v James (1986) ICR 603 EAT applied.
Appeal allowed in part
 ICR 813
William Meade (Senior Clerk)