Employment Appeal Tribunal
In the context of equal pay, the information to be provided in a grievance was minimal. It was enough for the purposes of the Employment Act 2002 Sch.2 para.6 for employees to state the bare fact that they were pursuing an equal pay complaint.
The appellants in three conjoined appeals appealed against decisions concerning the jurisdiction of the employment tribunal under the Employment Act 2002 s.32 to hear equal pay claims of employees who had brought grievances that arguably failed to satisfy the requirements of the statutory grievance procedure set out in Sch.2 para.6 of the Act. The key issue in the appeals was what detail was necessary to identify an employee's complaint in an equal pay case and what could properly be considered as "the basis" of the complaint. A related issue was how to determine whether there was the necessary degree of correlation between the grievance and a subsequent claim. In each case the employers (S, M and W) were local authorities operating the Agenda for Change job evaluation. In the cases involving S and M, the respective grievances had stated that the claim was an equal pay claim, that the claimants were predominantly female, and that the comparators were predominantly male, shared the same employer as the claimants and were paid more. In S's case the claim form had been detailed and in M's case it had been less detailed. The grievance in the case of W had been a bare statement that the claim was an equal pay claim. The employers submitted that in accordance with Highland Council v TGWU/Unison (2008) IRLR 272 EAT (SC), the language of Sch.2 para.6 of the Act meant that a comparator's job or job type had to be identified in the grievance. The employees submitted that the statute was not to be construed in a technical or overly sophisticated way and, given the test in Grimmer v KLM Cityhopper UK (2005) IRLR 596 EAT, potential equal pay claimants need only state in a grievance the bare fact that they had an equal pay complaint.
HELD: In the context of equal pay, the information to be provided in a grievance was minimal. It was enough for the purposes of Sch.2 para.6 for employees merely to indicate that an equal pay claim was being pursued, Highland doubted, Grimmer and Cannop v Highland Council (2008) CSIH 38, 2008 SLT 625 applied and Canary Wharf Management Ltd v Edebi (2006) ICR 719 EAT considered. That construction was compatible with the general definition of a grievance in the Employment Act 2002 (Dispute Resolution) Regulations 2004 reg.2 and was supported by policy considerations. Furthermore, the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.6 para.5 plainly envisaged that individual comparators may not have been named before the stage 1 equal value hearing. An employer could choose to initiate discussion to find out more about the complaint, and employees who failed to assist could be subject to a reduction in compensation of up to 50 per cent. Although that sanction was not applicable to collective grievances, that did not affect the proper construction of Sch.2 para.6. In light of the definition of what constituted a grievance, the correlation principle was, in practice, very easy to satisfy: where the grievance stated that it was an equal pay complaint, a claim form reflecting that fact was sufficient, whether the details of the claim were provided or not. Only if the claim form raised a claim from a different jurisdiction, such as dismissal or redundancy, would there be a lack of correlation. An unsatisfactory consequence of adopting the instant construction was that employees giving a detailed description of their claim in the grievance, but who subsequently added to the claim form comparators who had not been previously identified, might be unable to pursue the claim against the new comparators, where they would have been able to had the grievance been left suitably general and vague. It was recommended that a detailed statement of grievance be treated as a statement of the basic equal pay grievance. In each of the instant cases therefore, the tribunal had had jurisdiction to hear them because the grievances had each met the requirement of a bare statement of the jurisdiction in issue and there had been no doubt that the subsequent claims referred to the same complaint as had been raised in the grievances. The appeals in the cases of M and S were dismissed. The appeal in W was allowed. Permission to appeal was granted because of the importance of the issues and because there were two conflicting decisions on the proper construction of the legislation.
Appeals allowed in part
For the first appellant: Kennedys
For the second appellants: In-house solicitor
For the third appellant: Thompsons (Birmingham)
For the first respondent: Thompsons
For the second respondent: Thompsons (Nottingham)
For the third respondent: Wragge & Co LLP (Birmingham)
COLLECTIVE AGREEMENTS, EMPLOYMENT TRIBUNALS, EQUAL PAY, JURISDICTION, STATUTORY GRIEVANCE PROCEDURES.
William Meade (Senior Clerk)