Appeal No. UKEATS/0026/10/BI
UKEATS/0027/10/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 3 November 2010

Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

DUNDEE CITY COUNCIL	APPELLANT

MS KATHLEEN McDERMOTT AND OTHERS	RESPONDENTS

PERTH & KINROSS COUNCIL	APPELLANT

MS VICTORIA AMERY AND OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants	MR J MacMILLAN
(Solicitor)
Messrs MacRoberts LLP
Capella
60 York Street
Glasgow
G2 8JX
	
For the Unison Claimants	MR ROHAN PIRANI
(of Counsel)
Instructed by:
Messrs Thompsons Solicitors
Berkeley House
285 Bath Street
Glasgow
G2 4HQ
	
For the GMB Claimants	MR D W JAAP
(Solicitor)
Messrs Digby Brown Solicitors
The Savoy Tower
77 Renfrew Street
Glasgow
G2 3BZ
	
For the non-union Claimants	MR P CLARK
(Solicitor)
Messrs Fox Cross Solicitors Ltd
44 York Place
Edinburgh
EH1 3HU

SUMMARY
EQUAL PAY ACT – Equal value
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements

Equal Pay.  Statutory grievance procedure (standard procedure).  Where comparators in ET1 were materially different from comparators specified in earlier grievances and Employment Tribunal had not carried out a qualitative exercise to assess correlation of complaints, it had erred in law in holding that the requirements of section 32 of the Employment Act 2002 had been satisfied: Cannop and others v Highland Council sub nom Highland Council v TGWU and others [2008] IRLR 634. Comparators having been specified in the Claimants’ grievances, the fact that grievances and subsequent complaints to the Employment Tribunal both involved equal pay claims was not sufficient.

THE HONOURABLE LADY SMITH 
Introduction
1.	This appeal concerns a substantial number of equal pay claims brought by female claimant employees who were represented by Unison, the GMB and by Fox Cross, solicitors.  There are two employers involved, Dundee City Council (“DDC”), and Perth and Kinross Council (“PKC”) and the appeals were heard together.

2.	An issue arose in respect of all claims listed regarding compliance with the statutory grievance procedures (Employment Act 2002, section 32 and Schedule 2).

3.	By judgment registered on 8 February 2010 in respect of the claims against PKC, the Employment Tribunal sitting at Dundee, Employment Judge Mr I McFatridge, held:

“….section 32 of the Employment Act 2002 does not prevent the claimants listed presenting their complaints to the Tribunal.  The claims shall proceed to a hearing on the merits.”

4.	By judgment registered on 1 March 2010 in respect of the claims against DDC, the Employment Tribunal sitting at Dundee, Employment Judge Mr I McFatridge, held that:

“…section 32 of the Employment Act 2002 does not prevent the claimants listed presenting their complaints to the Tribunal.  The claims shall proceed to a hearing on the merits.”

Background
5.	The issue that gives rise to this appeal was determined by the Employment Tribunal at pre hearing review.  Parties agreed a statement of relevant facts for the purposes of the hearings.  In both judgments the Employment Judge records that parties were agreed that:

“In certain grievances comparators were named and in certain cases the comparators mentioned in the subsequent claim form were materially different from the comparators named in the grievance.”

6.	In light of the issue that arises, it should be noted that the agreement was that the comparators were materially different; it was not agreed that the grievances were materially different from the subsequent complaints presented to the Employment Tribunal.

7.	The Employment Tribunal did not carry out any assessment of the differences between the grievances and the subsequent forms ET1.  The hearings involved the presentation of submissions on the issue of whether or not the Employment Judge could, at that stage, conclude that section 32 of the 2002 Act had been complied with.

8.	Before the Tribunal, PKC and DDC’s position was that where it was the case that there was a material difference between the Claimants’ grievance and the subsequent complaint, there had been no compliance with section 32 of the 2002 Act.  That being so, the Tribunal would require to fix a further hearing for the purpose of a case by case comparison of the grievances and subsequent claim forms.

9.	The Claimants’ position was, shortly put, that no such exercise required to be carried out because their grievances intimated that they were claiming equal pay and their subsequent complaints all contained equal pay claims.

The Tribunal’s judgments
10.	The Tribunal Judge considered the terms of the 2002 Act and noted that it was only at step 2 that the claimant has to set out the basis for his grievance.  He considered the definition of grievance in regulation 2 of the Employment Act 2002 (Dispute Resolution) Regulations 2004.   He noted parties’ reliance on the various authorities to which I refer below, observed that the judgment of this Tribunal in Suffolk Mental Health Partnership NHS Trust v Hurst and others, Mid Staffordshire NHS Foundation Trust v Kaur and others and Arnold v Sandwell Metropolitan Borough Council [2009] IRLR 12 (“Sandwell”), provided a helpful summary of what was required for compliance with the grievance procedure but found that none of the authorities referred to were directly in point for the purposes of the claims before him.  That said, he does appear to have found some support for his approach from Sandwell in the Court of Appeal.

11.	In particular, the Employment Judge noted that the Court of Appeal in Sandwell did not deal with the situation where the grievance identified some comparators and there were material differences between those comparators and comparators subsequently identified in the ET1.  He considered that he required to adopt a purposive approach and that the purpose of the legislation would be better served if he construed it as not imposing a requirement that any comparators identified in the grievance be not materially different from those identified in the ET1.

12.	The Employment Judge did not accept that the specification of comparators in the grievance made any difference.  It was not, he said, appropriate to carry out an unduly technical or over sophisticated approach to construing a grievance: Sandwell, (EAT), at paragraph 16(vi).  That, he said, was “the nub”.

13.	Further, the Employment Judge considered that the effect of the Court of Appeal’s judgment in the Sandwell case was that if the grievance said equal pay and the claim to ET was a complaint about equal pay then that was enough and added:

“I do not consider that there is anything in the Cannop judgment which contradicts this.”

Relevant law
14.	The statutory grievance procedures applied to these claims.  The relevant procedure was the standard procedure.  Accordingly, it is not open to the Employment Tribunal to entertain the complaints presented unless, at least 28 days prior thereto, each Claimant had set out their grievance in writing and sent it to their employer (Employment Act 2002 s.32(2)and (3) and Schedule 2 Part 2, para 6).  Compliance with section 32 of the 2002 Act is achieved under the standard procedure by setting out the grievance in writing.  By contrast, under the modified procedure, to achieve compliance, the employee required to have set out in writing both the grievance and the basis for it at that first stage.

15.	The statutory grievance procedures have given rise to a plethora of litigation, of which this is an example.  It has been observed that rarely can there have been legislation that was more counter-productive but that is probably an understatement.  That said, it is the law which applies to these cases and so it requires to be applied.

16.	Once enacted, the terms of paragraph 6 of Part 2 Schedule 2 quickly gave rise to a question regarding the extent to which it was necessary for there to be congruence between the written grievance and the subsequent Employment Tribunal claim.  Much judicial effort and energy has been expended on the matter and in his judgment in Sandwell,  Elias P set out the principles which he considered were clearly established from the authorities:

“The following principles are, in my judgment, clearly established from the authorities:
(i)  The underlying purpose of the statutory grievance procedures is to seek to encourage conciliation and to avoid disputes having to be resolved by a tribunal (Shergold paragraph 26; Highland Council (EAT) paragraph 29).  The provisions are to be construed having that purpose in mind.
(ii)  In determining whether a statement amounts to a grievance or not, the appropriate test is the following (Highland Council paragraph 10):
‘the grievance document requires to be in such terms that, on a fair reading of it, the employer can be expected to appreciate that a relevant complaint is being raised (Canary Wharf at paragraphs 24 and 25); he needs to be able to understand from the grievance document what is the general nature of the complaint that is being made (Shergold at paragraph 37)’
(iii)  When construing the grievance – and this must apply both to the issue of whether a statement raises a grievance at all, as well as what complaint is identified by the grievance – the context is important.  The point was put by the Lord President, Lord Hamilton, in the Cannop case as follows (paragraph 29):
‘Moreover, the grievance document need not necessarily be read in isolation.  There may have been earlier communications with the employer which provide a context in which the grievance document falls to be interpreted (Canary Wharf, paragraph 36).  Thus, as seems to have been the case for some of the union-backed claimants in the present proceedings, prior communications between the unions on behalf of their members and the respondents, even if they do not give rise to deemed compliance by virtue of reg. 9 or 10 of the 2004 Regulations, may constitute a relevant context in which the grievance documents are to be understood.  Events subsequent to the communication of the grievance document (for example, the giving of the “basis” prior to the step 2 meeting and exchanges between the parties at that meeting) may illuminate the nature and scope of the grievance.’
(I confess to having some difficulty with the notion that the construction of the grievance can be made in the light of subsequent communications, but nothing turns on that issue in this case.)
(iv)  It is inappropriate to carry out an unduly technical or over-sophisticated approach to construing a grievance (Shergold paragraph 27; Edebi paragraph 41, approved in Highland Council (CS) paragraph 29).
(v)  It is enough in relation to step 1 of the standard grievance procedure to identify ‘the complaint’ (Edebi paragraph 21).  That is to be distinguished from the obligation (arising at step 2 of the standard grievance procedure but in step 1 of the modified procedure) to set out the ‘basis’ of the complaint.
(vi)  The statement of grievance must be a statement of essentially the same complaint as the employee is seeking to have determined in the tribunal (Edebi paragraphs 16,21); Cannop (Court of Session, at paragraph 29).  In this context, however, it must be borne in mind that the grievance document and the claim form are designed to achieve different objectives and are addressed to a different audience.  In Cannop (CS paragraph 29) the Lord President explained it thus:
‘…We add only that in carrying out this exercise it should be recognised that the grievance document and the tribunal claim are designed to perform different functions and that their language can accordingly be expected commonly to be different.  The correlation to be looked for is whether underlying the claim presented to the tribunal is essentially the same grievance as was earlier communicated’
(vii)  In accordance with European law principles, the procedural requirements, looked at in context, should not be applied so as to render access to the employment tribunal impossible in practice or excessively difficult: Cannop (paragraph 25).  This question needs to be looked at broadly: Unison v Brennan IRLR 492 paragraph 51.”

17.	In Sandwell, there were three sets of cases.  In none of them was the factual background the same as in the present cases.  Rather, as was observed by Elias P, in the Sandwell cases, at paragraph 61, they came very close to the situation where a grievance states no more than that there is a claim under the Equal Pay Act.  That was the factual context in which he made his decision that the requirements of section 32 were satisfied and the Employment Tribunal had jurisdiction to hear the claims.  The factual background in Sandwell was not, as in the present cases, that comparators were specified in the grievances, comparators were specified in the complaints presented to the Employment Tribunal and it was contended that there was a material difference between the grievances and the subsequent claims.  The Court of Appeal ([2009] IRLR 452) also concluded that, in the Sandwell cases, section 32 was complied with.  Both Elias P and the Court of Appeal expressed the view that it was enough for a claimant simply to indicate that he or she was pursuing an equal pay claim and that that would be compatible with the definition of “grievance”; it seems clear that both considered that the grievances in the claims before them fell into that category.  Elias P added the following obiter comments which were referred to in the present appeal:

“73. I do recognise that the construction I have adopted has certain unsatisfactory and anomalous consequences.  Perhaps potentially the most significant is that if this construction is correct, there is an argument that an employee who does identify with some precision the nature of the claim in his grievance statement but who subsequently, in the tribunal claim form, adds comparators who were not originally identified in the statement of grievance, may be unable to pursue the claim against those comparators not already identified in the grievance.  By contrast, he or she would be able to do so if the grievance had been left suitably general and vague.”

18.	He then proceeded to suggest, in further obiter discussion, a solution to the problem he had identified:

“74. I am inclined to think that this can be avoided without undue artificiality by treating a detailed statement of grievance as constituting in substance statement of the basic grievance that there is an equal pay claim and together with the detail, or some of it, which strictly is only required to be provided as part of the basis of the claim.  I heard no argument about that and I reach no concluded view one way or the other.” 

The last sentence of that paragraph plainly recognised, very properly, that it would not be appropriate for him to express any concluded view on the matter, not having heard any argument on it.

19.	The issue identified by Elias P at paragraphs 73 and 74 was not addressed by the Court of Appeal.  Rather, the focus in their judgments was on their conclusion that it was not necessary to give detailed specification in the grievance document.  Lord Justice Pill referring to the need for the complaint submitted to the Employment Tribunal to be the same as that in the grievance statement as “the correlation principle”, said, at paragraph 57(g):

“The correlation principle in my view operates in favour of grievance statement being required only in the most general terms.  It is unthinkable that Parliament was creating a trap for employees by requiring detail in a grievance statement which, following legitimate and desirable negotiation and discussion, might well require amendment, by way of a further grievance statement or statements, and further discussion and delay, before complaint to the tribunal is possible.  I reject the submission that the correlation principle is the mainspring of the procedure to the extent that the requirement to comply with it demonstrates the need for a detailed statement of grievance.”

20.	The Court of Appeal did not consider what would be the position, so far as compliance with section 32 of the 2002 Act was concerned, where, far from the grievance document being only in the “most general of terms”, it gave specification of the comparators on whose circumstances the employee was relying.

21.	In Highland Council v TGWU and others [2008] IRLR 272, comparators were specified in the grievances and there was variation as between those comparators and the ones specified in the forms ET1 subsequently presented.  The Employment Tribunal did not carry out any comparative exercise yet found that section 32 of the 2002 Act had been complied with.  Sitting in this Tribunal, I considered that the reasoning of the Employment Tribunal (at paragraphs 51 and 57 of its reasons) involved the proposition that:

“..[it] would not have mattered if the comparators referred to in her grievance document were quite different from those relied on in her subsequent claim.” (paragraph 17 of the judgment of this Tribunal)

and on appeal to the Court of Session (Cannop and others v Highland Council sub nom Highland Council v TGWU and others [2008] IRLR 634), the Inner House agreed with that construction of the Tribunal’s reasoning (see paragraph 31 of the opinion of the court, delivered by the Lord President).  I had found that the Employment Tribunal had erred in failing to carry out a qualitative assessment to see if there were material changes between the grievances and subsequent claims and remitted the claims to the Employment Tribunal for that exercise to be carried out.  Likewise, the Inner House considered that there required to be a remit to the Employment Tribunal, although the terms of the remit were varied.

22.	The court specifically refrained from expressing any view on the hypothetical question of whether or not there would be compliance with the standard grievance procedure for the purposes of section 32 if all that the written grievance had said was “I have an equal pay claim.”  At paragraph 30, the Lord President explained:

“We are not prepared to go further for the purposes of this appeal.  In particular we consider it neither necessary nor desirable to express an opinion on the hypothetical question which the appellants urged us to answer.  So far as appears, none of the present appellants communicated to the respondents any previously unforeshadowed grievance document in the stark terms ‘I have an equal pay claim’.  In the nature of things it is unlikely that a communication in such stark terms would be made.  It would be dangerous and potentially confusing for this court to address a hypothetical question without actual context.”

23.	The Inner House remit to the Employment Tribunal was in the following terms:

“to consider whether in the case of each claimant the grievance underlying the form ET1 was essentially the same as the earlier intimated grievance.”

24.	Two points arise.  The first is that the Inner House would appear to be using the terms “essentially the same” to capture what the Court of Appeal referred to as the “correlation principle”.  Secondly, it has to be concluded that the Inner House did not consider that the fact that the grievances and the subsequent claims both involved the assertion that the employers had failed to comply with their obligations under the Equal Pay Act 1970 of itself meant that the grievances and subsequent claims were essentially the same.  If that had been their view, there would have been no need or basis for the remit or for the direction to the Employment Tribunal to carry out the task specified in it.

25.	I would also refer to the case of Brett & Others v Hampshire County Council UKEAT/0500/08, recognising at the outset that it concerns a group of claims involving the modified, not the standard, grievance procedure.  That is not, however, to say that the approach of Underhill P is entirely irrelevant for the purposes of this appeal.  The circumstances were that the grievance letters identified certain comparator posts (“Mobile Library Assistant”, “Basic Technician”, “Storeman Driver” and “Weighbridge Test Operator”) but in the relevant ET1, in addition to the storeman driver and technician jobs, two other, different, comparator posts were referred to, namely “Mobile Library Driver/ Assistant SC3000” and Mobile Library Driver Assistant SC4000”.  Those were not the same jobs as specified in the grievance document.  Underhill P approached matters on the basis that:

“11…Analytically, each claim by reference to a different comparator is a different claim (or different cause of action, as it sometimes put). This was held by Elias P in this Tribunal in Redcar Cleveland Council v  Bainbridge (no 2) [2007] IRLR 494 …In my judgment it follows that, even if a complaint to the Tribunal or a grievance document brings together more than one comparison, the correlation issue must be considered in respect of each comparison separately.”

26.	That analysis must, in my view, apply in exactly the same way to cases involving the standard grievance procedure when considering whether or not the requisite correlation exists for the purposes of s.32 of the 2002 Act. In Brett, Underhill P directed that the relevant complaint be allowed to proceed but only insofar as it relied on comparisons with the jobs of storeman driver and technician, there being correlation as between the grievance and the Tribunal complaint in respect of those comparators.  There would seem to be no reason why that approach should not also apply in a standard case.  Thus, if a claimant specified comparators A, B and C in the grievance document, then specified comparators A, B, C, D, E and F in the form ET1 and a comparison of the two led to the conclusion that they were not essentially the same complaints because of the addition of D, E and F, the outcome would be that the claim could proceed insofar as the claimant sought to compare herself to A, B and C. She would not be deprived of the opportunity to pursue a claim.

The appeal
Submissions for DDC and PKC
27.	The central submission for the Appellants was that it was plain from the judgments of the Employment Tribunal that the Employment Judge’s approach was that it did not matter if the grievances and the subsequent claims specified different comparators; whatever the difference, there was still compliance with section 32 of the 2002 Act.  There was, on the approach of the Employment Judge, no need to carry out any examination of the two sets of documents.  That was a flawed approach and, in particular, was contradictory of the reasoning in Cannop.

28.	Mr MacMillan referred to the terms of the remit in Cannop.  Comparison was still necessary.  Further, the judgment of the Court of Appeal in Sandwell was not to the effect that comparison was always unnecessary.  It was instructive to consider the approach adopted in Brett.  He submitted that, logically, if an employee decided to give the basis of his claim in the grievance document then he was “in the same territory” as a claimant following the modified procedure.  The issue was not whether or not the claimant was obliged to state the basis of his claim but the fact that he had done it and that could not be ignored when considering whether or not the correlation principle was satisfied.

29.	However, what the Employment Judge had done, on Mr MacMillan’s submission, was find that since all an employee had to do was say that he had an equal pay claim, the fact that he had said rather more than that in his grievance could be ignored.  That was not right and was contrary to Cannop.

Submissions for Unison Claimants
30.	At the heart of Mr Pirani’s submissions was the proposition, under reference to Sandwell, that the equal pay context necessitated a different approach to section 32.  He referred to the Court of Appeal having determined in Sandwell that it was sufficient for the written grievance to inform the employer that the claim was brought under the Equal Pay Act and submitted that that led to the logical conclusion that where the claimant had mentioned a comparator in his grievance, she was not thereby prevented from later relying on other comparators.  That was because claimants ought not to be penalised by giving too much detail, the employer could be in no worse position if the grievance identified some comparators, the correlation principle would be satisfied if the complaint in the grievance and the ET1 were both complaints in respect of equal pay and that would accord with the purpose of the legislation, which was to encourage conciliation and avoid disputes.

31.	Mr Pirani sought to distinguish Brett because it concerned the modified grievance procedure.

32.	The only reference Mr Pirani made to the case of Cannop was to rely on an observation at paragraph 25 that the requirements of section 32 should not be applied so as to render access to the Employment Tribunal “impossible or excessively difficult”.

Submissions for non Union Claimants
33.	Mr Clark adopted Mr Pirani’s submissions.  It was correct that there was no need to compare comparators in the grievance with the comparators in the ET1’s.  It was just a matter of comparing the complaint.  That was a lower threshold and the complaint was that they were equal pay claims.  He relied on the correlation principle having been satisfied in Sandwell.

Submissions for GMB Claimants
34.	Mr Jaap submitted that I should adhere to the judgment of the Employment Tribunal and dismiss the appeal.  He adopted the submissions of Mr Pirani and Mr Clark.

Discussion and Decision
35.	The decision of the Inner House in Cannop is binding on me and I start by observing that the context of the present claims is not what the Lord President in Cannop surmised would be the unlikely event of the written grievance having stated only that the employee had an equal pay claim.  Rather, as in Cannop, these appeals concern cases involving grievances which identified comparators and forms ET1 which also identified comparators, albeit with additional and different ones.  Further, as above noted, it seems to me to be of relevance that the decision of the Court of Appeal in the Sandwell cases concerned a set of claims that could be regarded as being of the same character as that unlikely event.  Thus, as the Employment Judge recognised, the decision in Sandwell is not in point.

36.	The authorities to which I refer articulate much understandable judicial anxiety at the prospect of the risk of a strict application of section 32 giving rise to unfairness, in particular that strict application may unfairly prevent claimants having access to an Employment Tribunal.  The concern has been that that could be the result of holding that the grievance document required to identify comparators.  However, as was recognised by Lord Justice Pill in Sandwell, at paragraph 61:

“There will be causes of action and cases in which particulars can readily be given by a potential claimant.”

37.	Whilst that comment was made under reference to cases other than equal pay claims, it is, I consider, in point since, in the present cases, particulars were evidently able to be given by the Claimants.  Certainly, at the stage of presentation of their claims to the Employment Tribunal they added new comparators or changed comparators but they were not without comparators’ particulars at grievance stage.  The position would, accordingly, appear to be that at least some parts of the complaints presented to the Employment Tribunal will have been addressed in the earlier grievance procedures although other parts of them are new.  Thus, employers were specifically directed to one set of comparators at the grievance stage.  It was that set of comparators, insofar as notification of their employees’ complaints was concerned, on which any effort at conciliation could be expected to have been focussed.  They could not reasonably have been expected to focus on any comparison between the Claimants and comparators who were excluded from the particularisation in the grievances.  Now that complaints have been presented to the Tribunal, however, new comparators have arrived on the scene, ones not considered at the earlier stage and, accordingly, ones to which any earlier efforts at conciliation cannot expect to have been directed.  That, however, is exactly the situation that the statutory grievance procedures were designed to avoid.

38.	Central to the issue that arises is that in all the claims under consideration by the Employment Judge, comparators had been specified in the grievances.  None of the grievance documents were included in the bundle for the appeal.  Sample forms ET1 were, however, included.  One of them is the claim at the instance of Kathleen McDermott against DDC.  She was employed as a social care officer and the ET1 states that she contends:

“…she was entitled to equal pay with male employees employed in the following groups:-
Facilities Assistant, Facilities Coordinator, Painter, Painter Chargehand Sweeper (MW1), Chargehand – Small – Sweeper, Sweeper (MW2), Sweeper (MW3) and HGV Driver (MW4).”

39.	As indicated, I was not advised as to the comparators identified in the grievance documents but, given parties’ agreement as to the underlying facts, it can be assumed that in the case of Kathleen McDermott, one or more of the comparators in the list in the ET1 were not specified in the grievance.  Further, given that agreement, the comparator jobs in her ET1 not specified in her grievance are materially different from any of the comparator jobs that were specified in her grievance.  If it is determined that the new comparator jobs (i.e. those which appear for the first time in the forms ET1) are such as to show that her grievance and ET1 are to any extent not essentially the same complaint, then I see no reason why the Brett approach should not be adopted.  That way the claim would go ahead insofar as the requisite correlation existed, but not otherwise.

40.	It seems to me that in all the circumstances, it was not open to the Employment Judge to approach matters as he did.  Contrary to what he asserts, Cannop was directly in point and contradicted the approach upon which he determined.  Furthermore, it was binding on him.  As I have already observed, there would have been no purpose in the remit by the Inner House in Cannop had it been the view of the court that the fact that the grievances and the forms ET1 all related to equal pay claims was enough and that therefore the specification of comparators in both sets of documents could be ignored.  Further, for that to have been the view of the court would have flown in the face of its clearly expressed intention to reach no view on the matter at all.

Disposal
41.	I will pronounce an order remitting all cases in these appeals to the same Employment Tribunal to consider whether in the case of each Claimant the grievance underlying the form ET1 was essentially the same as the earlier intimated grievance.