EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Emslie Lord Marnoch	[2011] CSIH 72 XA52/11 OPINION OF LADY PATON in the appeal under section 37(1) of the Employment Tribunals Act 1996 by CAROLINE AITCHISON and OTHERS Claimants and Respondents; against SOUTH AYRSHIRE COUNCIL Respondents and Appellants: _______

Claimants and Respondents: Napier, Q.C.; Thompsons, Solicitors

Respondents and Appellants: Truscott, Q.C.; Maclay Murray & Spens

18 November 2011

Employment law: collective grievance

[1] Section 32 of the Employment Act 2002 introduced a grievance procedure, the purpose of which was to encourage employers and employees to negotiate and settle disputes without having to resort to tribunals and courts. Where a collective grievance on behalf of a number of employees was envisaged, the Employment Act 2002 (Dispute Resolution) Regulations 2004 provided inter alia:

"9(1) ...the parties shall be treated as having complied with the requirements of the procedure if a person who is an appropriate representative of the employee having the grievance has -

(a) written to the employer setting out the grievance; and

(b) specified in writing to the employer (whether in setting out the grievance or otherwise) the names of at least two employees, of whom one is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance."

The wording of the regulation attracted considerable criticism. One unfortunate consequence was that if an employee's name was not properly specified in writing to the employer in terms of Regulation 9(1)(b), that employee could not proceed to present his or her case to an Employment Tribunal: section 32(1) and (2), and Schedule 2 paragraph 6, of the Employment Act 2002.

Equal pay collective grievance

[2] By letter dated 11 August 2006, Unison Trade Union ("Unison") advised South Ayrshire Council ("SAC") as follows:

"Dear Mr Cairns

Collective Grievance for Back Pay under the Equal Pay Act 1970 - revision of initial documentation

Notwithstanding your letter refusing to accept the initial grievances lodged on behalf of UNISON members re Back Pay under the Equal Act 1970; this letter represents a grievance lodged by us as the recognized trade union on behalf of those members, your employees, who are entitled to back pay under the Equal Pay Act 1970. In particular we are submitting grievances on behalf of those people whose names are listed in the Schedule annexed to this letter. This list may require subsequent revision. It is my understanding that any employee who believes they have a grievance has an entitlement in law to have their grievance heard, I would therefore be obliged if you could schedule hearings for those persons named in the attached.

The grievance relates to back pay under the Equal Pay Act 1970 arising out of our members' employment with you for the periods stated in the Schedule. Our members are doing work which has been rated equivalent under the Job Evaluation Scheme adopted by the Council in 1^st July 1999, or alternatively whose work is of equal value to other of your employees ('the comparators'). The comparators are paid more than our members.

Our members work in groups who are predominantly female and/or the comparators work in groups that are predominantly male. As such they are entitled to equal pay with their comparators unless you can prove that there is a valid objective reason for paying them less than their comparators. In our view there is no valid objective reason. Our members are therefore entitled to back pay in respect of the difference in pay between them and their comparators, for up to 5 years.

Please may we have in writing an acknowledgement that in principle you will pay the back pay owing to our members under the Equal Pay Act and any proposals you wish to put forward to settle this issue".

[3] No written schedule was attached to the letter. A computer disc (CD) enclosed with the letter contained an Excel Spreadsheet with 19 files. For this appeal, the 19 files were printed out and lodged as a production, with each printed file annotated with a manuscript heading. The headings were, respectively, (1) South Ayrshire Council; (2) SAC Grievance; (3) Admin Assts; (4) catering; (5) classroom assts; (6) cleaners; (7) clerical assistants; (8) home care; (9) library assistants; (10) miscellaneous; (11) Nursery Nurse; (12) probation officer; (13) query job; (14) receptionist; (15) school crossing patrol; (16) SEN; (17) technicians; (18) warden; (19) South Ayrshire CASE. The first file contained the names and addresses of the entire membership of Unison working for SAC, numbering about 2,500 employees. The remaining files contained the names and addresses of those employees grouped under different headings. There was therefore a duplication of names, resulting in approximately 4,394 names in total on the CD. The CD did not contain the names of any other employees of SAC who were not members of Unison, being either non-union employees or members of another Union.

[4] SAC responded by letter dated 25 September 2006, in the following terms:

"Dear Renee

Collective Grievance for Back Pay under the Equal Pay Act 1970

I refer to your recent correspondence regarding the above and would advise that having taken legal advice the Council is not prepared to accept the grievance in its present form.

The reasons for this are:

·       You appear to have submitted your grievance based on a list of employees which seems to constitute a list of all UNISON members in the Ayr Branch, male and female, of whom many are unlikely to have an Equal Pay Issue.

·       It is the Council's understanding that any grievance must refer to the specific group(s) of employees to whom the grievance applies together with details of 3 comparators for each staff group and grounds of comparison in each case.

·       This has not been submitted to date. The grievance must identify the group of staff who claim to have a grievance and cite comparators and grounds. A grievance by an entire workforce is not acceptable.

·       On these grounds it is our opinion that the grievance as it currently stands is therefore incompetent.

Additionally, with regard to your reference to 'work rated as equivalent' under the Job Evaluation Scheme I would refer you to my letter of 30^th June 2006 which explained that no equal pay claim on these grounds can be considered until after the completion of the Job Evaluation exercise.

I would add, however, that the Council will, of course, be prepared to consider an Equal Pay grievance where this is submitted in an appropriate manner.

I would also advise that in response to your comment on the release of individual job evaluation scores it is my view that it would not be appropriate to issue this information in advance of the completion of the Job Evaluation exercise.

Should you require any further information please do not hesitate to contact me".

[5] Unison did not submit a supplementary (or a revised or a fresh) grievance letter. Some weeks later, on 7 November 2006, approximately 500 of the 2,500 Unison employees of SAC named on the CD lodged claims for equal pay with the Employment Tribunal.

Employment Tribunal

[6] In a decision dated 17 June 2010, the Employment Tribunal concluded that it had jurisdiction to consider the claims, as the 500 Unison employees had complied with section 32 of the 2002 Act. In particular, the tribunal recorded at paragraphs 29 and 30:

"29. The third point that there was no Schedule attached to the letter of 11 August 2006 (4), contrary to what is suggested in its first paragraph, leads me on to the issue of whether it is permissible to treat the computer disc, containing the Schedule, as specification 'in writing' of the names of employees for the purposes of Regulation 9(1)(b) of the 2004 Regulations. It is not in dispute that the computer disc was delivered to the respondents along with UNISON's letter 11 August 2006 (4). It is also not in dispute that there was no hard copy of the Schedule provided by UNISON with their letter (4). The respondents do not dispute however that they were able to read the computer disc and, if required, print off its contents. It is clear from the terms of the respondents' letter of 25 September 2006 (5) that they were able to read and consider the contents of the computer disc. There is no suggestion that UNISON attempted to specify the name of the claimants to the respondents by any means of verbal communication. I am satisfied that in the above circumstances, albeit no Schedule was attached to the letter of 11 August 2006 (4/1) in the form of a hard copy, a Schedule was provided by means of the computer disc and the Schedule was a list of employees' names 'in writing'.

30. In the above circumstances, I am of the view that the present case can be distinguished from the case of The Highland Council v TGWU and others UKEATS/0048/07. In The Highland Council (supra), there was held to be non‑compliance with Regulation 9 of the 2004 Regulations because the trade union concerned did not provide the names of employees in their letter of grievance or otherwise. At best, they sought to rely upon reference to 'our women members' employed in certain categories of the respondents' workforce. This left the respondents in a position of being unable to identify employees covered by the collective grievance and whether subsequent Tribunal claims related to it or not. In the present case, the respondents have received a list of employee names, a number of whom have subsequently presented Tribunal claims. This was not the situation in The Highland Council case (supra)".

Employment Appeal Tribunal (EAT)

[7] SAC appealed to the EAT. Interestingly, the point at issue in this appeal was not argued in any depth before the EAT. Ultimately, the EAT overturned the decision of the tribunal and ruled that the tribunal did not have jurisdiction to hear the claims, observing at paragraph 29 of the judgment dated 4 April 2011:

"The condition that had to be complied with here was not technical or sophisticated. It was simply a matter of naming the relevant names. I do not agree with Mr Napier's submission to the effect that since the Respondent led no evidence to show that the names on the computer disc included persons who did not have a grievance, it was to be assumed that they all had an equal pay grievance. There is no basis for that assumption, particularly since the inclusion of men's names on the computer list and the absence of reference to periods of employment gave rise to a real doubt as to whether it was the right list and, further, that it was for the Claimants to show that they had complied with the statutory requirements. There was no evidence one way or the other and the Employment Judge correctly avoided making the assumption for which Mr Napier contended. She then, however, fell into error by testing whether or not there had been compliance by asking whether or not, once the claims had been presented to the Employment Tribunal, it could be seen that the Claimants were amongst those listed on the computer disc. That cannot, however, be the correct approach. The time at which to test whether or not there has been compliance is at the point of intimation of the grievance. Could the employer, at that stage, tell which of his employees had an equal pay grievance? If he could not then there could be no reasonable expectation of the purpose of the statutory procedures - the resolution of grievances without litigation - being achieved".

On 12 May 2011 the EAT granted the appellants (the employees) leave to appeal to the Court of Session.

Appeal to the Court of Session

Submissions for the appellants

[8] Senior counsel for the appellants submitted that Regulation 9 required the written grievance to include at least one employee with an actual grievance (in this case, unequal pay) who would proceed to a tribunal, together with other employees who might or should have a similar grievance, and might or should proceed to a tribunal. Anyone who had told the Union that they did not have such a grievance or did not want to pursue such a claim to the tribunal would not be included in the list of names. The Union presented a single grievance, a collective grievance, and not the individual grievances of members.

[9] Thus the Union representative had an obligation to include all employees who, in the Union's view, might or should have such a grievance (including of course at least one employee with an actual grievance). Such written intimation was wholly adequate for the purposes of the Regulations, namely the encouragement of negotiation and resolution without resort to tribunals and courts. The employer was alerted to the type of grievance and to the employees who might proceed to make a claim to the tribunal. Negotiations could then commence.

[10] Counsel further submitted that the penalty for an employee whose name did not appear on the list was severe: he or she could not proceed with a claim to the Employment Tribunal. While a new grievance could be intimated to the employer at a later date, time would be lost, and as a result the claimant would be deprived of some back-pay because of the 5-year retrospective limit. The Union had therefore to act to protect its members' rights. On one view, a single mistake in the specification of names (for example, a name included when it should be omitted, or vice versa) could result in none of those employees named being able to proceed to a tribunal.

[11] In this particular case about 2,500 Unison members, representing the entire Unison workforce of SAC, were included in the list, some having actual equal pay grievances, and others who were considered should or might have such a grievance. It was not irresponsible of the Union to cast its net as widely as possible, as once there were changes in pay, other employees might then have claims for equal pay.

[12] Of the 2,500 employees included in the written grievance, about 500 had proceeded to make a claim in the Employment Tribunal. They had been met with the EAT decision that Regulation 9(1) had not been satisfied and accordingly that the Employment Tribunal had no jurisdiction. However the EAT was in error at paragraph [29] of its decision. Regulation 9 did not require a list identifying each individual employee with an actual grievance. What was envisaged was the entering into of discussions at a collective level: the identity of individuals with an actual grievance was not required by the legislation. The court was entitled to assume that the Union representative was acting responsibly: Suffolk Mental Health Partnership NHS Trust v Hurst [2009] ICR 1011 (CA) at page 1027 paragraph (f). In keeping with that approach, the grievance letter stated that the list of names "may require subsequent revision".

[13] Finally, senior counsel submitted that the CD satisfied the requirement in Regulation 9(1)(b) that the specification be "in writing". In modern times, such forms of communication were common (cf Regulation 61 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004). The employer could be assumed to have a computer. It was not necessary for the grievance letter specifically to refer to the CD when the CD was physically enclosed with the letter. While there were drafting infelicities in the letter, the letter enclosing the CD broadly got across the information to the employer. What had been given to the employer was more than enough to enable the employer to respond: cf Shergold v Fieldway Medical Centre [2006] ICR 304 at paragraph 27. Admittedly there were duplications in the CD; but, one way or another, the disc contained the names of Unison members who had an equal pay grievance, and Unison members who might or should have such a grievance. In any event, the Employment Tribunal's conclusion in paragraph 29 was arguably a finding-in-fact, which should not be disturbed unless an error in law was demonstrated.

Submissions for the respondents

[14] Senior counsel stated that this was the only known case where a Union had sent a CD. SAC's position was that the lists of names contained in the CD did not constitute a collective grievance in terms of the 2004 Regulations. It was not a difficult task for a Union to gather the necessary information from its members as to who did, and who did not, have an equal pay grievance. In the present case, the employer had given the Union clear warning that the letter and CD did not constitute a proper collective grievance. The Union could have taken steps to resolve the problem.

[15] The CD contained an Excel spreadsheet with 19 separate worksheets. Someone unfamiliar with such a spreadsheet might mistakenly access and print only the first worksheet, and not the remaining 18 (as SAC's letter of 26 September 2006 suggested they had in fact done). Even when the worksheets were successfully printed out, it was necessary to marry up sheets with names to sheets with addresses. Included in the many names were the names of persons who did not, to counsel's knowledge, have an equal pay grievance (for example, Mr Truscott's instructing solicitor employed by SAC).

[16] Regulation 9(1)(b) had caused difficulties and uncertainties. Paragraph 38 of Alitalia Airport SpA v Akhrif and others [2008] ICR 813 demonstrated that the basis of the Employment Tribunal's construction was "absurd". SAC's position was that, on a proper construction of Regulation 9(1)(b), the Union was required, at the very beginning, to intimate the names of those employees having an actual equal pay grievance at that time. It was not accepted that the Union was entitled to represent those who might have an interest although they had not yet reached the stage of a statutory grievance. A proper analysis of Regulation 9 did not entitle the appellants to succeed. The appeal should be dismissed.

Discussion

[17] The grievance procedure introduced by section 32 of the Employment Act 2002 was intended to promote negotiation and resolution of employment claims without having to resort to tribunals and courts. However one result has been that the procedure's status as an essential prerequisite of court proceedings has led to disputes over whether there has been technical compliance with the requirements of the legislation. In some cases, flaws in compliance may mean that the employee is unable to present a claim to a tribunal: cf. paragraph [1] above. As Burton J, President of the EAT, observed in Shergold v Fieldway Medical Centre [2006] ICR 304 at paragraph 27:

"...the need for parties to understand each other's position before proceedings are launched (and the opportunity for resolution short of litigation) is to be welcomed, but what must be guarded against, once such legislation has been enacted, is that it can create its own hostage to fortune and, in fact, introduce an entirely and, we are satisfied, unintended result of creating undue technicality and over-sophistication, which can result in problems for both sides."

[18] Against that background, one important question raised in this case is whether a Union, once alerted to some sort of equal pay grievance, must check and verify precisely which of its members have, at that time, an actual equal pay grievance and which do not, and then restrict any equal pay collective grievance letter to the former. In my opinion, on a proper construction of the regulation, that is not required. In terms of Regulation 9(1)(b), the names to be specified must include at least one employee with an actual equal pay grievance, and at least one other employee who might or should have such a grievance (and who has not categorically intimated to the Union that he or she does not wish to pursue that grievance). Those whose names have been so specified to the employer may subsequently proceed to lodge a claim with a tribunal. The employer for his part is alerted to the fact that claims by all or some of the employees named might be lodged in the future, and that negotiations with the Union representative could commence. Such pre-tribunal communication and negotiation (the avowed purpose of the grievance procedure) would not be frustrated by the lack of detail as to, for example, precisely which of the employees named had an actual equal pay grievance at that time, and which only might or should have such a grievance. While the employer might well prefer to receive more detail at that stage, the legislation does not require it. The fact that Unison specified some male employees does not detract from the validity of the exercise: some male employees might have equal pay grievances. Nor does the fact that the entire Unison membership (about 2,500 employees) was specified mean, inexorably, that no comparators could exist, or that some comparators must be included in the 2,500 and therefore could have no equal pay grievance. SAC in fact employed a total workforce of 5,700, as set out in their Form ET3 in the Appeal Print. SAC employed workers other than Unison members (either non-union employees, or members of different unions). Those non-Unison members would be available as comparators.

[19] Such a construction of Regulation 9(1)(b) in my view avoids any absurdity referred to by Elias J at paragraph 38 of Alitalia, as the list of names contains only those employees who have an actual equal pay grievance, or who might or should have such a grievance, and not those who are known not to have such a grievance. The court is entitled to assume that the Union representative is acting responsibly: Suffolk Mental Health Partnership NHS Trust v Hurst
[2009] ICR 1011 (CA) at page 1027 paragraph (f). The procedure might be thought comparable to a type of "class action" where persons named in good faith at the outset as being amongst those who might or should have a claim are entitled, at a later stage, to opt out of any further procedure for whatever reason.

[20] In this particular case, an additional complication has been the use of a CD as the method of communication. The CD which accompanied the letter of 11 August 2006 was neither referred to in the letter, nor labelled or headed "Schedule". The CD contained the 19 files described in paragraph [3] above, with a duplication of names over the 19 files. The worksheets, when printed off, produced entries extending horizontally over several pages, which required to be matched up. Nevertheless I agree with the Employment Tribunal that the necessary names were specified in writing to the employer. E-mail, e-mail attachments, CDs, USB sticks, and other similar methods of communication had become fairly common by 2006. There was no suggestion that SAC were unable to access or read the CD. Esto SAC proceeded on the basis of Worksheet 1 alone, that gave them all the necessary information. While there were duplications of names in other files on the CD, and while those duplications might be regarded as unnecessary or superfluous, the fact remains that the names of the approximately 2,500 members of Unison, one or some of whom actually had an equal pay grievance, and others who should or might have such a grievance, were specified in writing to SAC.

[21] In the result therefore I have reached the conclusion that Unison's letter dated 11 August 2006 with enclosed CD satisfied the requirements of Regulation 9(1)(b).

Decision

[22] For the reasons given above, I propose that the appeal be allowed, the decision of the EAT overturned, and the appeals remitted to the Employment Tribunal to proceed as accords.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Emslie Lord Marnoch	[2011] CSIH 72 XA52/11 OPINION OF LORD EMSLIE in the appeal under section 37(1) of the Employment Tribunals Act 1996 by CAROLINE AITCHISON and OTHERS Claimants and Respondents; against SOUTH AYRSHIRE COUNCIL Respondents and Appellants: _______

Claimants and Respondents: Napier, Q.C.; Thompsons, Solicitors

Respondents and Appellants: Truscott, Q.C.; Maclay Murray & Spens

18 November 2011

Introduction

[23] Before the appellants' equal pay claims came before the Employment Tribunal in the autumn of 2006, there was a need to comply with certain prior notification requirements arising under the Employment Act 2002 as read along with the Employment Act 2002 (Dispute Resolution) Regulations 2004. These requirements have been the subject of a good deal of criticism over the years, with much judicial effort devoted to construing them in a less onerous manner than their strict terminology might suggest. The Regulations were eventually repealed in 2009, but for present purposes it is still necessary to consider what the requirements meant in 2006 and whether the appellants, through their Union, achieved sufficient compliance at that time.

[24] Section 32 of the 2002 Act provides inter alia as follows:

"...(2) an employee shall not present a complaint to an Employment Tribunal under a jurisdiction to which this section applies if -

(a) it concerns a matter in relation to which the requirement in paragraphs 6 or 9 of Schedule 2 applies, and

(b) the requirement has not been complied with.

(3) an employee shall not present a complaint to an Employment Tribunal under a jurisdiction to which this section applies if -

(a) it concerns a matter in relation to which the requirement in paragraphs 6 or 9 of Schedule 2 has been complied with, and

(b) less than 28 days have passed since the day on which the requirement was complied with".

The "relevant jurisdiction", as set out in Schedule 4, covers virtually all claims capable of being submitted to a Tribunal, and paragraphs 6 and 9 of Schedule 2 concern the duty of an individual employee to set out his or her grievance in writing for the benefit of the employer. Where, however, a Trade Union seeks to pursue a collective grievance on behalf of two or more of its members, different rules must necessarily apply. As at the relevant date in 2006, the appropriate procedure was covered by regulation 9 of the 2004 Regulations in inter alia these terms:

"(1)....the parties shall be treated as having complied with the requirements of the procedure if a person who is an appropriate representative of the employee having the grievance has -

(a) written to the employer setting out the grievance; and

(b) specified in writing to the employer (whether in setting out the grievance or otherwise) the names of at least two employees, of whom one is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance".

[25] By reference to authority such as Suffolk Mental Health Partnership NHS Trust v Hurst & Others 2009 ICR 1011 ("the Hurst case"), it was accepted on both sides of the bar that the purpose behind the foregoing statutory requirements was to ensure that employers would have a reasonable opportunity to respond to alleged grievances, and perhaps settle them, before the trouble and expense of Tribunal proceedings were incurred.

[26] This is not the first case in which courts and tribunals have had to consider what the authors of these requirements could sensibly be taken to have had in mind. In Alitalia Airport SpA v Akhrif & Others 2008 ICR 813, Elias J (as he then was, sitting as President of the EAT) made the following observations directed to the proper construction of regulation 9(1):

"38. I confess that the regulation is not easy to construe. I have some difficulty with understanding what is meant by the phrase 'the names of at least two employees, at least one of whom is the employee having the grievance'. Read literally, it suggests that a grievance may have been lodged on behalf of two employees, one of whom is an employee who does not have that grievance, which is absurd.

39. However, both counsel submit, and I accept, that the draftsman's intention must have been that one of the employees at least must be a claimant: 'the employee having the grievance' in Regulation 9 is the party having to lodge a statutory grievance. The duty to lodge the statutory grievance within the appropriate time only arises in circumstances where the aggrieved party subsequently becomes a claimant. Accordingly, the employee having a grievance is the employee who later makes a claim. The Regulations hardly express this in a transparent fashion, but I accept it is difficult to see what else could have been intended.

40. In my judgment Mr Linden's construction is preferable, essentially for the reasons he gives. The natural meaning of the regulations is that the reference to 'the party' who is to be treated as having complied with the requirements of the grievance procedure is the same as the 'employee who has the grievance' in sub-paragraph (b). The representative must identify in writing the employees on whose behalf he is raising the grievance, and that must mean all the employees including those raising a statutory grievance who subsequently become claimants.

41. It follows in my judgment that regulation 9 requires the Union representative to identify each party who is to be treated as having complied with the statutory grievance procedure, and section 32(3)(b) requires that this must be done within the statutory timeframe.....".

[27] It would not, in other words, be good enough for a collective grievance to be accompanied by the names of employees to whom it did not apply. As regards both employees subsequently going on to make a claim before the Tribunal, and also others for whom a grievance is collectively being advanced, the focus of the requirement must be on the naming of individuals to whom the grievance applies since this might be thought conducive to the underlying statutory purpose.

[28 On 11 August 2006 the appellants' Trade Union sent to the respondents a letter which bore to be "...a grievance....on behalf of those members, your employees, who are entitled to back pay under the Equal Pay Act 1970". The names of those persons would, it was said, be found in a Schedule annexed, and the letter went on to indicate that the Schedule would contain details of relevant periods and perhaps also of comparators. However, no such Schedule was in fact provided. Instead, there was enclosed with the letter a computer disc containing a wealth of information from the Union's records. Relevant printouts have been provided for our assistance, and it can be seen at once that the CD mentioned no periods or comparators, nor did it identify which of the Union's members actually had a back pay grievance. What it did contain was some nineteen "worksheets", comprising different lists of named employees/members of the Union. Under the general heading "South Ayrshire Council 70705", Worksheet 1 listed by name some 2,500 members of the local branch of the Union, both male and female, together with addresses and job titles. Worksheet 2, which was headed "SAC Grievance", comprised multiple alphabetical and non-alphabetical lists of names (together with addresses and other details) spread over many pages. Worksheets 3 to 18 inclusive comprised yet more personnel lists, of varying length and format, each of which bore to relate to a different job description such as "administrative assistants", "catering", "technicians" and the like, and Worksheet 19 listed more than 400 employees under the heading "South Ayrshire CASE".

[29] On 25 September 2006 (after the 28-day period prescribed under section 32(3) of the 2002 Act had expired), the respondents asserted in correspondence that the form of the grievance submitted was unacceptable. In particular the CD, of which the respondents may only have had access to Worksheet 1, was thought to list "...all UNISON members in the Ayr Branch, male and female, of whom many are unlikely to have an Equal Pay issue". In the respondents' view, the grievance "...must identify the group of staff who claim to have a grievance and cite comparators and grounds". No clarification was, however, forthcoming from the Union, and in the following month Tribunal claims were lodged in the name of only a small proportion of the listed branch membership.

[30] The short point for determination in these appeals is whether the CD which accompanied the Trade Union's letter of 11 August 2006 constituted a sufficient compliance with regulation 9 of the 2004 Regulations as properly understood. On these issues the Employment Tribunal found for the appellants, whereas on appeal the Employment Appeal Tribunal took the opposite view. In particular, as regards the construction of regulation 9, the Employment Tribunal (at para.31) held that so long as the relevant list contained the name of one employee "...having the grievance", the remaining names might be of persons to whom that grievance did not apply. On appeal, the EAT construed the regulation more strictly along Alitalia lines, holding (at paras.11, 28 and 29) that the employer should, at the time of receipt, be able to tell which of his employees were those on whose behalf the relevant grievance was being collectively advanced.

The parties' contentions

[31] For the appellants, senior counsel submitted that the EAT had gone wrong here, and that on a proper construction of regulation 9 the CD achieved ample compliance with the statutory requirements. In particular, it was permissible for the Trade Union to specify the names of all of its members, since it was on behalf of its membership that a Union acted. Moreover, all might have an equal pay claim at some point and, for the Union's own protection, it was important that no potential claimant should be omitted from the list. Such omission would preclude any approach to the Employment Tribunal until a fresh 28-day "moratorium" had passed vis-à-vis any omitted claimant. Obviously the longer a Tribunal claim was delayed, the greater the risk that an individual's entitlement would be diminished. In good faith, therefore, (which should be assumed in such cases: Pill LJ in the Hurst case at para.57(f)), the Union had sent out a list of all members who they considered might at some point qualify as an equal pay claimant. No doubt the CD list included the names of comparators and others who could have no such claim at present, but circumstances might change if, for instance, the current claims were upheld. In these circumstances, the possibility of anyone on the list having an equal pay grievance in the future could not be ruled out.

[32] Importantly, according to senior counsel, the statutory requirements had often been construed in such a way as to avoid unnecessary technicalities. As explained by Burton J in Shergold v Fieldway Medical Centre 2006 ICR 304, at para.28, an obvious danger was that "...pernickety criticism ...can result in an employee being barred from the judgment seat entirely". Similar concerns were voiced by Pill LJ in the Hurst case at para.57(a), (e) and (g). It would therefore be inappropriate for this court to take a technical approach here, and in essence to penalise the Union in circumstances where the true scope of the requirements had been the subject of confusion at the time. Significantly, a non-technical approach had been taken by the Court of Appeal in the Hurst case, where a very low threshold was set for the specification of a relevant grievance.

[33] On the question whether the CD enclosed with the letter of 11 August 2006 complied with the regulation as so construed, senior counsel maintained that there was no reason why written information stored or transmitted electronically should not qualify. The Employment Tribunal had found for the appellants on the compliance issue and, it was said, that finding should be characterised as one of fact which this court should be very slow to disturb. Admittedly the CD had actually contained a multiplicity of lists of employees' names, but the respondents' letter of 25 September 2006 showed that they recognised Worksheet 1 as being a list of all employees who were members of the local Union branch. No prejudice had been caused by the inclusion of other materials, even though Worksheet 2 confusingly contained more than 700 names under the heading "SAC Grievance". In listing the names of all branch members, including those who subsequently lodged claims before the Tribunal, the Union should be deemed to have behaved responsibly, as observed by Pill LJ in the Hurst case at para.57(f). Confirmation of the Union's position could be found in the initial letter of 11 August 2006, which asserted that grievances were being submitted "...on behalf of those people whose names are listed in the Schedule annexed to this letter". While the CD might not have been the Schedule as such, the letter still showed that a list of potential claimants was intended. The whole point of the exercise, it was said, was "...to ensure that anyone named on the list would have the possibility of bringing a claim before the Tribunal".

[34] In response, senior counsel for the respondents invited us to affirm the decision of the EAT and refuse these appeals. As regards the proper construction of regulation 9(1)(b), reliance was placed on the Alitalia decision and on Lady Smith's opinion in the instant case. The acknowledged purpose of the statutory requirements was to enable employers like the respondents to consider and, if possible, resolve grievances before they were brought to the Tribunal. This purpose could only be achieved if an appropriate representative was obliged to identify those individuals on whose behalf a particular grievance was being pursued. That was the ordinary and obvious meaning of the provision if read without the words "...of whom one is the employee having the grievance", and there was no sensible reason why an obligatory regulation should have concerned the identification of persons who did not share the grievance in question.

[35] On this approach, the CD plainly failed to comply with the statutory requirements. As the EAT feared might happen, the respondents seemed to have accessed only part of the contents of the disc, namely the initial list of all branch members in Worksheet 1. Examination of the remainder made the appellants' position even worse. Worksheet 2 was a substantial list of names under the title "SAC Grievance", and there then followed 17 further worksheets with more names in both alphabetical and non-alphabetical lists. On any view this multiplicity of lists was calculated to cause confusion, and certainly failed to provide the respondents with any intelligible guidance as to the scope and location of the grievance which might fall to be addressed over the ensuing 28 days. The CD moreover failed to match the letter of 11 August 2006, which had held out the promise of a document detailing claimants' names, periods and possibly also comparators.

Discussion

[36] As it seems to me, the decision in these appeals is complicated by the existence of controversy over several aspects of the preliminary notification requirements under the 2002 Act and relative Regulations. By way of illustration, the Court of Appeal has recently held that, in order to avoid prejudice to claimants in this field, any equal pay grievance is sufficiently "set out" by merely referring to the Act of 1970. No further details need be given: cf. the Hurst case per Pill LJ at paras.57-58. At paras.61-62 of the same decision, however, the ruling is significantly qualified by the observation that in many cases a statement of facts would be appropriate, and that a purported statement may so mislead or distract as to amount to an abuse of the procedure contemplated by Parliament. Along similar lines, there are conflicting approaches to the question whether comparators need be identified at the grievance notification stage: cf. Highland Council v TGWU and Others (No.2) 2008 IRLR 272 (EAT); Cannop v Highland Council 2008 IRLR 634 (Inner House); and the Hurst case (Wall LJ in the Court of Appeal at paras.82-83). If the statutory requirements have in some quarters been treated as having minimal content in these areas, it might be argued, then it would be inappropriate to give them any greater content here.

[37] In addition there is the obvious general consideration that such requirements (especially those which have now been repealed) ought not to be construed in a way which unfairly, and with undue technicality, bars genuine claimants from reaching the Tribunal. At the same time, there are reasons from an employer's perspective why the statutory grievance procedures should not be construed too weakly. If Tribunal proceedings are to be avoided, the employer must know where he stands from an early date. Where regulation 9 applies, there is no equivalent of paragraph 7 or 9 of Schedule 2 to the 2002 Act whereby, in order to facilitate negotiation, the basis of a complaint must be disclosed by the employee concerned. Thus any lack of clarity in the stated grievance runs the risk of depriving the employer of his statutory right to respond before Tribunal proceedings are raised. Furthermore, in terms of section 31 of the 2002 Act, an employer's non-compliance with the statutory grievance regime may lead to an increase of up to 50 per cent in any compensation payable.

[38] With these important background considerations in mind, I have reached the conclusion that regulation 9 of the 2004 Regulations cannot sensibly be construed as the appellants would wish. To my mind a proper understanding of the regulation may be focused in a number of short paragraphs as follows:

(a) The acknowledged purpose of the disputed statutory requirements is to facilitate negotiation, and if possible resolution, of grievances within the (minimum) 28 days which must elapse before Tribunal proceedings are brought. As Pill LJ put it in the Hurst case at para.57(a),

"The 2002 Act has the admirable purpose of discouraging the precipitate issue of proceedings and encouraging negotiation, conciliation and settlement....".

With that in mind, it would be strange if due compliance with the regulation could leave an employer in the dark as to the extent and location of a grievance within his workforce. Merely to list the entire workforce so far as represented by a given Trade Union would prima facie seem to deprive the employer of any semblance of help in that direction.

(b) The practical effect of regulation 9 is to impose procedural requirements upon an appropriate representative purporting to advance a collective grievance on behalf of employees. These requirements are clearly not designed for the representative's protection, but for the benefit of both employer and employees who might thereby be enabled to avoid the trouble and expense of Tribunal proceedings. Accordingly, in my view, there is no force in the appellants' contention that the regulation should be interpreted in the manner least burdensome to the Union, and as permitting them to send out undifferentiated membership lists conveying no relevant information to the employer concerned.

(c) If the intention had been that an employer should, at the pre-Tribunal stage, simply be reminded of the extent of his Union-represented workforce, the regulation could very easily have been framed in such terms. However, this was not done, doubtless because a statutory requirement along these lines would have served no useful purpose.

(d) On a straightforward reading of what might be termed the "main clause" of regulation 9(1)(b), it bears to oblige an appropriate representative to "specify" the names of at least two employees "as being those" on whose behalf "the" grievance "is" being "raised" (emphasis added). As shown by the repeated mention of employees ".....having the grievance", the context is that of Tribunal claims which are already in prospect, and with regard to which the need for preliminary notification arises. Only one collective grievance − "the" grievance − is envisaged. In that context, the primary wording of the provision does not readily call to mind an unspecified listing of the whole Union-represented workforce, nor the naming of employees who have no current complaint, nor the identification of persons who might possibly turn out to have some different and unascertained grievance in the future. Over and above that, of course, it is necessary to give some reasonable content to the fact that the regulation in terms concerns employees "on whose behalf" the grievance in question is being raised. The focus of the regulation is not on persons "in whose interests" or "for whose benefit" a representative might generally purport to act.

(e) While "...the employee having the grievance", is necessarily included, it would in my view be wrong to construe the main clause of regulation 9(1)(b) as denoting only those employees who subsequently go on to make claims before the Tribunal. That would I think involve an element of prediction or guesswork rather than the specification called for. At the same time, as Elias J (as he then was) held in the Alitalia case, it would be absurd to construe the clause as encompassing employees who, at that time, have no grievance at all. According to their ordinary and natural meaning, the words used concern the raising of a collective grievance, and in that context only employees to whom the grievance applies could intelligibly have been in contemplation.

(f) From a broader perspective, moreover, regulation 9 bears to provide a deemed equivalent to what would otherwise be required, namely each individual claimant having to set out his or her own grievance in writing at the pre-Tribunal stage. Thus, if the regulation is read in conjunction with paragraphs 6 and 9 of Schedule 2 to the Act of 2002, the "bottom line" is that a claimant will be at risk under section 32 unless he or she is either (a) the subject of a timeous individual statement of grievance or (b) numbered among the subjects of a collective grievance timeously raised by a Trade Union or other authorised representative. Either way, it is the beneficiary or beneficiaries of a particular existing grievance who must be named.

(g) Furthermore, as discussed in most of the authorities to which we were referred, the validity of a pre-Tribunal grievance notification (whether individual or collective) falls to be judged by comparing its scope and terms with the claim or claims subsequently advanced ("the correlation principle"). As expressed by Burton J in the Shergold case, at para 35:

"... the grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance, if the relevant statutory provision is to be complied with".

In the same vein, the Lord President in Cannop, at para 28, said:

"The terms of sec 32(2) are clear. The need for a relationship between the grievance and the Tribunal claim has been recognised by the Employment Appeal Tribunal (Shergold v Fieldway Medical Centre, Buxton J, para 35, cited with approval by Elias J in Canary Wharf Management Limited v Edebi, para 21). In the later case Elias J observed (para 16) that the statement of the grievance 'must of course be a statement of the same complaint as the employee is seeking to have determined by the Tribunal'. He added (para 21):

'The only requirement, as section 32(2) makes plain, is that the complaint to the employer must be essentially the same complaint that is subsequently advanced before the Tribunal'."

Clearly the essential nature of a complaint is determined inter alia by the identity of those by whom, or on whose behalf, it is advanced, and if the latter cannot be ascertained at the grievance stage it is hard to see (a) how an employer can fairly be expected to respond, or (b) how any meaningful correlation exercise can later follow.

(h) Taking all of the foregoing considerations into account, I consider that the statutory obligation incumbent on an appropriate representative under regulation 9 is to make a fair disclosure, in advance of Tribunal claims being lodged, of the names of employees to whom a particular grievance applies. Not all such employees need be specified at the one time: additional notification (with a further 28-day moratorium) may legitimately follow at a later date. But there must be a genuine attempt to separate out and identify, from within the workforce as a whole, those employees on whose behalf the grievance in question is being raised.

(i) Conversely I am not persuaded that, on a proper construction, regulation 9 either requires or permits an appropriate representative to send the employer an undifferentiated list of names, the vast majority of which turn out to have no connection with an extant collective grievance. Such a construction would, quite simply, deprive the regulation of any sensible content. With the greatest respect, therefore, I am unable to share the views which have commended themselves to the other members of this court. In particular, I have difficulty in seeing how your Ladyship's approval of a statement indiscriminately naming, not only employees with an actual equal pay grievance, but also others who "...only might or should have such a grievance" can be reconciled with (i) the statutory wording, context or purpose, (ii) the "correlation principle" as properly understood, or (iii) the terms of the Union's grievance letter discussed in paragraphs [39] and [40] below. Equally perplexing, in my respectful opinion, is the idea that the employer in this case should, on receipt of such a statement, have been liable to "negotiate" with (among others) up to 2000 people who had no current grievance.

[39] On the approach to construction summarised above, it is but a short step to hold that the Union's letter and CD of 11 August 2006 fell well short of compliance with the statutory requirements. Focusing, to begin with, on Worksheet 1, that reflected no genuine attempt to disclose the names of employees to whom the grievance applied. In referring to "...those members" or "...those people" having an entitlement to back pay and to "...groups who are predominantly female", the grievance letter in terms concerned only a proportion of the local membership. Yet the worksheet transmitted what the respondents described in Form ET3 as a "name dump" of all Union members, both male and female, within the Ayrshire Branch. It left the respondents with no worthwhile indication as to the extent and location of the alleged grievance within their workforce. It was not the Schedule mentioned in the Union's letter, nor did it contain any of the details which the letter appeared to promise. It comprehensively failed to "specify" the names of "...those members" on behalf of whom "the" 2006 grievance "was" being "raised". To make matters even worse, the CD contained other substantial worksheets entitled "SAC Grievance" and "South Ayrshire CASE", each listing hundreds of names, which (if accessed by the respondents) could only have served to create further confusion. Was it Worksheet 1 or 2 or possibly 19 which, without explanation, was supposed to identify "...those members, your employees, who are entitled to back pay under the Equal Pay Act 1970"? Interestingly the first named appellant, Caroline Aitchison, appeared in Worksheet 19 (and for that matter Worksheet 7) as well as in the "whole branch" Worksheet 1.

[40] Against that background I fail to understand the repeated assertion by senior counsel for the appellants to the effect that the Union genuinely believed that all of the names supplied were of individuals who might have a grievance. For one thing, the list in Worksheet 1 appears to have contained the names of some individuals (like the respondents' solicitor) who definitely had no grievance at the material time; for another, it seems inconceivable that the worksheet did not also carry the names and/or job titles of intended comparators who, by definition, were paid more than others and could thus have had no current grievance either; significantly, the covering letter made it clear that the asserted grievance applied to only some of the branch membership; and on no view could regulation 9 have been thought to embrace speculative future grievances unrelated to the Tribunal proceedings which (for only a small proportion of the listed employees) were in prospect over the autumn of 2006. In the face of such difficulties the notion that a Union should be taken to act responsibly would seem to carry no weight. In the Hurst case, as indicated at paras.19 and 89/90, the same Union did in fact specify the names of those employees on whose behalf collective grievances were being advanced, and I can see no reason why the same course should not have been taken here.

[41] In the foregoing circumstances, it is unnecessary to decide whether the contents of the CD should be held to qualify as being "...in writing" within the meaning of regulation 9. For my own part, however, I would have been inclined to hold that a visually readable list of names in electronic format was, by analogy with many other statutory contexts, sufficient compliance in point of form. Information contained in an email would, I think, qualify, and if that is so it is perhaps hard to see why the same information contained in a CD should be in any different position.

Disposal

[42] On the whole matter, I consider that the Employment Tribunal fell into error in this case; that the EAT, by contrast, reached the right conclusion for essentially the right reasons; and that these appeals must therefore be refused.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Emslie Lord Marnoch	[2011] CSIH 72 XA52/11 OPINION OF LORD MARNOCH in the appeal under section 37(1) of the Employment Tribunals Act 1996 by CAROLINE AITCHISON and OTHERS Claimants and Respondents; against SOUTH AYRSHIRE COUNCIL Respondents and Appellants: _______

Claimants and Respondents: Napier, Q.C.; Thompsons, Solicitors

Respondents and Appellants: Truscott, Q.C.; Maclay Murray & Spens

18 November 2011

[43] This appeal raises two short points of construction regarding the operation of the now repealed Paragraph 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 which is in the following terms:

"9(1) Where either of the grievance procedures is the applicable statutory procedure, the parties shall be treated as having complied with the requirements of the procedure if a person who is an appropriate representative of the employee having the grievance has-

(a) written to the employer setting out the grievance; and

(b) specified in writing to the employer (whether in setting out the grievance or otherwise) the names of at least two employees, of whom one is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance.

(2) For the purposes of paragraph (1), a person is an appropriate representative if, at the time he writes to the employer setting out the grievance, he is-

(a) an official of an independent trade union recognised by the employer for the purposes of collective bargaining in respect of a description of employees that includes the employee having the grievance, or

(b) an employee of the employer who is an employee representative elected or appointed by employees consisting of or including employees of the same description as the employee having the grievance and who, having regard to the purposes for which and method by which he was elected or appointed, has the authority to represent employees of that description under an established procedure for resolving grievances agreed between employee representatives and the employer.

(3) For the purposes of paragraph (2)(a) the terms "official", "recognised" and "collective bargaining" have the meanings given to them by, respectively, sections 119, 178(3) and 178(1) of the 1992 Act."

[44] What happened in the present case was that by letter dated 11 August 2006 headed "Collective Grievance for Back Pay under the Equal Pay Act 1970" the appellants' Trade Union wrote to the respondents' Chief Executive stating, inter alia, that:

"this letter represents a grievance lodged by us as the recognised trade union on behalf of those members, your employees, who are entitled to back pay under the Equal Pay Act 1970. In particular we are submitting grievances on behalf of those people whose names are listed in the Schedule annexed to this letter".

In fact no schedule was "annexed" to the letter but there was enclosed with it a computer disc containing a Microsoft Excel spreadsheet which, we were told, when opened up, displayed or was capable of displaying numerous lists of names within 19 separate worksheets, the first of which comprised a total of some 2,500 names being all the members of the Union employed by the respondents.

[45] Logically, the first point which arises is whether the enclosed disc can be regarded as "specifying in writing" the names of anyone at all. The Employment Appeal Tribunal considered this question under reference to the Interpretation Act 1978 which in Schedule 1 provides that "'Writing' includes typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form, and expressions referring to writing are construed accordingly". It recognised that a computer disc can be used to produce visible words on a computer screen and took note of the decision in Rollo v HM Advocate (1997) JC 23 that the term "document" covered a "Memomaster" which was found to disclose a drugs supply "tick list". Nonetheless, it considered that, read in context, the requirement for "writing" in Paragraph 9 did not allow for use of the disc in question. In so doing the Employment Appeal Tribunal doubtless had in mind the terms of section 5 of the 1978 Act which provides that the definitions set out in Schedule 1 should apply "unless a contrary intention appears". The Employment Appeal Tribunal also pointed out that other statutory provisions might be differently construed and, indeed, in the course of the Appeal to us, our attention was drawn, by way of example, to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 para 61 which expressly provides for a notice in writing to be sent "by ... means of electronic communication". All that said, and despite the various points made by the Employment Appeal Tribunal at p12 of its determination, I am not myself persuaded that the statutory context is sufficient to displace the standard definition in the Interpretation Act to which I have referred. On balance, therefore, I proceed on the basis that the accompanying disc did specify at least certain names in writing within the meaning of Paragraph 9. It is, of course, a separate question whether the names so specified were in any sense meaningful and, had the respondents opened up the whole disc and discovered all the other lists of names to which I have referred, I would have had great difficulty in answering that question in the affirmative. As it happens, it appears to be common ground that only the first list was opened up and before the Employment Tribunal it was accepted that that was the list intimated by the Union.

[46] The second and, perhaps, more difficult issue for our determination is whether that list of names including, as it did, all the names of the appellants, satisfied the substantive, albeit convoluted, provisions of Paragraph 9(1)(b). Mr Truscott, Q.C., for the respondents, submitted that it did not because, as had been held by the Employment Appeal Tribunal, the list in question should have been a list of employees who at that point of time were actually desirous of expressing a grievance. In my opinion, however, neither the statutory wording nor its context will bear that construction.

[47] In Alitalia Airport SpA v Akhrif & Ors (EAT) [2008] ICR 813 at paras 32-42 Elias P (as he then was) considered carefully the meaning of Paragraph 9 and concluded that "the employee having the grievance" could only mean an employee included amongst those on whose behalf a collective grievance is raised and who subsequently makes a claim to the Employment Tribunal (my underlining). This, however, leaves all those employees on whose behalf the collective grievance has been raised who do not proceed to a Tribunal. What of them? Differing respectfully from the Employment Appeal Tribunal on this point it seems to me that in the context of collective bargaining there is no reason to infer that the "appropriate representative" - in this case the Union - should have the actual or express authority of all those other employees to include their names within the specification of employees sent to the employer. On the contrary, it must be a daily occurrence for Trade Unions to seek to negotiate improved terms and conditions for their members without having any specific authority for doing so and, in this connection, I note that in Paragraph 9(2) there is express recognition that the representative in question will be someone involved in collective bargaining on behalf of persons other than those who end up making a claim to the Employment Tribunal.

[48] It is, I think, because Paragraph 9 includes within its ambit such disparate subject matter as collective bargaining and individual complaints to the Employment Tribunal that it gives rise to the difficulty in construction experienced by this Court. However, looking at its provisions overall, I do not myself think it possible to conclude that in many instances other than a small minority (if any) of those on whose behalf a collective grievance is raised will actually go on to become claimants before the Tribunal. For that reason I doubt whether Paragraph 9 has that clear "focus" attributed to it by those who take an opposite view of its provisions. Rather do I think that the specification of an eventual claimant should properly be seen as in some respects incidental to the broader purpose of collective bargaining.

[49] If I am right so far it is, I think, impossible to be prescriptive as to how the Union should have exercised its judgement in deciding which of its members should be included in the specification in question. Mr Napier informed us that in this case the Union considered that, one way or another, all of its members might have interests which could be affected by a dispute over Equal Pay and I do not myself feel able to dispute that assertion. In particular, I accept that a collective grievance over "Equal Pay" can be extremely wide ranging and that tentative agreements about one section of the workforce or one group of employees will frequently have "knock-on" effects for other sections or groups. As Lord Emslie has pointed out, a reference to "Equal Pay" or even the Equal Pay Act 1970 has been held to constitute sufficient specification of a "grievance" and that view of matters was accepted by counsel for both parties in the present case. I emphasise that by this stage of the analysis the purpose of specifying names to the employer under Paragraph 9 has to be seen primarily as indicating those on whose behalf collective bargaining is to take place rather than as being directed in the first instance to proceedings before the Employment Tribunal.

[50] For the foregoing reasons I concur in Your Ladyship's motion that the Appeal be allowed and that we should thereafter remit to the Employment Tribunal to proceed as accords.