The appellant local authority appealed against a decision at a pre-hearing review that the respondent employees (X) had complied with the provisions of the Employment Act 2002 Sch.2 para.6 in respect of their equal pay complaints. There was variation as between the comparators specified in X's grievance letters and those specified in their ET1 forms, but the tribunal held that X were not prevented from presenting their complaints by the operation of s.32(2) of the Act. The local authority argued that the tribunal was required to carry out a qualitative assessment, comparing each ET1 with the relevant grievance letter and determining whether, where there was a change of comparator, it was a material change: if it was, the complaint could not be presented unless the employee first carried out the stage 1 grievance procedure requirements. The local authority submitted that, in order for an employer to understand the nature of the grievance, an indication of the comparator being relied upon had to be given. Although there did not have to be an absolute match between the comparator job title in the grievance document and in the ET1, there needed to be enough of a match for fair notice. X submitted that they were at a disadvantage as they did not know the pay scales and other relevant details of potential comparators at the grievance stage, and if the local authority's approach was right then whenever claimants identified a new comparator they would have to start again with a fresh grievance whether before or after proceedings had begun. X argued that there could be time bar problems, it would be impractical and would cause prejudice. X further argued that at the grievance stage, the employee was only required to set out that she had an equal pay complaint; specification of comparators was a matter of setting out the "basis" of the claim and was only required at stage 2 of the standard grievance procedure.

HELD: (1) The exercise of comparison was so fundamental to an equal pay complaint that there must be some specification of comparator, at least by reference to job or job type, in the grievance document. Without that, the employer could not be expected to appreciate that a relevant complaint was being made. It was not enough to state that an equal pay claim was being made without saying more. The employer was entitled to know the essence of what it was he had to respond to. A distinction had to be drawn between stage 1 and stage 2 of the standard procedure. The employee did not have to set out the "basis" for the grievance at stage 1. However, it was wrong to regard the specification of a comparator as being a matter of setting out the basis for the grievance, Shergold v Fieldway Medical Centre (2006) ICR 304 EAT and Canary Wharf Management Ltd v Edebi (2006) ICR 719 EAT applied. (2) As with any mandatory statutory procedure, the fact that it was difficult to comply did not mean that a person could be regarded as having complied if he had not done so, or that he should be excused compliance. Even if it could be said that compliance would be impractical and unwieldy, that simply disclosed a problem with the system that Parliament had created, and was not a reason or justification for disregarding the system. (3) When a claimant discovered materially different comparators after having communicated a grievance document which may or may not have specified some comparators, there were two possible outcomes: (a) if tribunal proceedings had not yet started, then a further grievance document had to be communicated if the claimant wished, in the event that the grievance was not resolved, to rely on that new comparator in a subsequent employment tribunal claim. In principle there was nothing wrong with a claimant having more than one grievance procedure. It would be open to the parties to agree that one meeting would cover both grievances, if appropriate; (b) if tribunal proceedings had already started, the claimant could seek to amend her existing claim. The tribunal would not require to refuse such amendment by reason of the fact that the new comparator had not featured in the original grievance document. Alternatively, the claimant could start afresh in respect of a new comparator, with a fresh grievance and then a fresh tribunal complaint, Bainbridge v Redcar and Cleveland BC (2007) IRLR 494 EAT considered. (3) The instant case was remitted to the same tribunal to consider whether s.32(2) applied so as to prevent X's complaints being presented, having regard to the fact that to determine that issue it had to consider whether X had previously communicated a grievance document to the local authority specifying comparators that were not materially different from those specified in their ET1 forms.

Appeal allowed

 

Counsel for the first respondent: Betsan Criddle
For the second respondent: Robert Moretto