Where, in a case involving the modified grievance procedure, some of the comparator jobs identified in an equal-pay claimant's claim form had been different from those identified in her grievance, she could still pursue her claim in relation to the comparator jobs that had been the same in her claim and grievance.

 

The appellant employees (B, C, D and E) appealed against an employment tribunal's decision that it had no jurisdiction to hear their equal-pay claims against the respondent local authority employer because they had not complied with the appropriate statutory grievance procedure for the purpose of the Employment Act 2002 s.32(2).

 

Most of the claimants had complied with s.32 by relying on the Employment Act 2002 (Dispute Resolution) Regulations 2004 reg.9, which dealt with collective grievances. B, however, had relied on a grievance lodged on her behalf by her union representative and it was dealt with under the modified grievance procedure provided for at sch.2 pt.2 ch.2 of the Act. The grievance referred to four comparator posts, but her subsequent claim before the tribunal referred to just two of those comparator posts and two different ones. The employment judge found that the basis of claim identified in the grievance was not the same as, or substantially similar to, that lodged with the tribunal and so s.32 had not been complied with. C were three claimants who had been part of a collective grievance submitted by their union. However, the grievance referred to them and some others by the wrong job title. That mistake was corrected and whilst the others used their correct job titles in their subsequent claims, C maintained the wrong titles. The employment judge found that whilst a claim form could be amended if the grievance had recited the correct title, that option was not possible where both grievance and claim form were inaccurate in respect of the claimants' job status. D were four male claimants who had been part of a collective grievance. However, the grievance letters were drafted on the basis that the comparators were all male. The employment judge found that D's claims could only have proceeded if they had been contingent on the female claimants' claims, but their grievance and subsequent claims had not been on that basis. E had been included in a list of employees attached to a collective grievance, but she had not completed the grievance form and withdrew her claim. She later sought to reinstate the claim. The employment judge found that her withdrawn grievance could not be revived because nothing had been in writing.

 

B submitted that her claim could still proceed, at least on the basis of the two comparisons which were the same in her grievance and claim; C submitted that the misdescription of their job titles in the grievance letters did not mean that those letters did not set out the grievance, as required by reg.9(1)(a); D submitted that it had been obvious that their claims were contingent, using as comparators the female claimants doing the same job; E submitted that she should be allowed to reinstate her claim.

 

HELD: (1) Each claim by reference to a different comparator was a different claim or cause of action, Bainbridge v Redcar and Cleveland BC [2007] I.R.L.R. 494 applied. It followed that, even if a complaint to the tribunal or a grievance document brought together more than one comparison, the correlation issue had to be considered in respect of each comparison separately. The policy behind the Regulations was that employers should be given the chance to examine, and if possible resolve, an employee's grievance before it became necessary to resort to proceedings. In relation to the two comparator posts which did correspond in B's grievance and claim, the local authority was given that opportunity. There was no good reason why B or her union's error in relation to the description of the other two comparator posts should operate as a bar to her proceeding with quite different claims. B's appeal would be allowed in part. (2) If an employee had initially misdescribed her work in a grievance statement, or had it misdescribed in a collective grievance, there could be no reason in principle why that could not be put right by an appropriate correcting document, provided it was done before the issue of proceedings. Whether C had sought the corrections before proceedings were issued was a matter for the tribunal. C's appeal would be allowed so that that matter could be remitted. (3) Although it was only recently that male contingent, or "piggy-back", claims were definitively held to be permissible, they had been a feature of mass equal-pay litigation against public authorities for many years, and so any human resources professional presented with a schedule of mostly female equal value complainants, but which contained a handful of male employees, would understand at once what was intended; and if he was in any doubt his legal department would soon enlighten him. D's appeal would be allowed. (4) It would subvert the entire regime of the Act and the Regulations, which fundamentally depended on grievances being stated in writing, if a grievance which had been unequivocally withdrawn could effectively be revived without any document to that effect. E's appeal would be dismissed.

 

Appeals allowed in part.

 

Counsel for the appellant: Melanie Tether.