West Dunbartonshire Council v Smith & Ors (Practice and Procedure : 2002 Act and pre-action requirements) [2011] UKEAT 0029_10

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> West Dunbartonshire Council v Smith & Ors (Practice and Procedure : 2002 Act and pre-action requirements) [2011] UKEAT 0029_10_1301 (13 January 2011) URL: http://www.bailii.org/uk/cases/UKEAT/2011/0029_10_1301.html Cite as: [2011] UKEAT 29_10_1301, [2011] UKEAT 0029_10_1301

THE HONOURABLE LADY SMITH

Introduction

1. This appeal concerns a substantial number of equal pay claims brought by female Claimant employees of the Respondent. An issue arose which, in some respects, was identical to the issue in the claims considered in the appeals of Dundee City Council v Ms Kathleen McDermott & Ors UKEATS/0026/10/BI, and Perth and Kinross Council v Ms Victoria Amery and Ors UKEATS/0027/10 BI. That is, an issue arose regarding compliance with the statutory grievance procedures (Employment Act 2002 section 32) where there was variation in the specification of comparators as between grievance documents and the forms ET1. There was, in these cases, a further issue namely the effect, if any, of variation between “job rated as equivalent” and “equal value” claims regarding such compliance. The relevant procedure in each case was the standard procedure.

2. By judgment registered on 2 June 2010, the Employment Tribunal sitting at Glasgow (Employment Judge Frances Eccles) held:

“The Judgment of the Employment Tribunal is that the claimants have complied with section 32 of the Employment Act 2002 and that accordingly the Employment Tribunal has jurisdiction to consider their claims.”

Background

3. Before the Tribunal, parties were agreed that the claims should be grouped according to the grievance documents and forms ET1 relied on by each Claimant. They fell into three categories.

4. In the first group of claims, the Claimants specified in their grievances (a) that their jobs were rated as equivalent to men doing jobs rated the same or lower than them and that:

“These include road sweepers, refuse collectors and drivers and gardeners.”

and (b) that they were paid less than men employed on “Red Book” terms even although their jobs were of equal value to:

“…such as building labourers, painters and fitters.”

5. In their forms ET1, they stated:

“The claimant contends that her job is of equal value and/or rated as equivalent to the relevant posts listed below:-

Refuse Driver

Road Sweeper

Gardener

Glazer

Driver Labourer.”

6. In the second group of claims, the Claimants specified in their grievances that they were not paid the same as men in jobs rated as equivalent under the “old Green Book” and set out the following list of comparators:

“GRADE MW1 CLAIMANTS – Road Sweeper MW1

Gardener MW1

CLEANSING OPERATIVES

YARD STORE LABOURER

GRADE MW2 CLAIMANTS – all of the above plus

Gardener MW2

Refuse collector MW2

Storekeepers

Labourers

CLEANSING DRIVER

VOID SECURITY OPERATIVE

GRADE MW3 CLAIMANTS – all of the above plus

Gardener MW3

Public Lighting attendants

Driver labourers

Roadworker MW3

BURIAL GROUNDS WORKER

KITCHEN INSTALLER

GRADE MW4 CLAIMANTS – (and apt &c claimants scales 1 and 2) all of the above plus

Refuse Drivers

Gardener supervisors MW4

Glazers

Roadworker MW4

SUPERVISORS – KITCHEN

CONTRACT

GRADE MW5 – (and apt & c scales 3 and above) – all of the above plus

Painter

Road worker MW5

TRADES SUPERVISOR”

and in their forms ET1 they stated:

“THE CLAIMANT CONTENDS THAT HER JOB IS OF EQUAL VALUE AND/OR RATED AS EQUIVALENT TO THE RELEVANT POSTS LISTED BELOW:

GRADE MW1 CLAIMANTS – ROAD SWEEPER MW1

GARDENER MW1

CLEANSING OPERATIVES

YARD STORE LABOURER

GRADE MW (sic) CLAIMANTS –ALL OF THE ABOVE PLUC (sic)

GARDENER MW2

REFUSE COLLECTOR MW2

STOREKEEPERS

LABOURERS

CLEANSING DRIVER

VOID SECURITY OPERATIVE

GRADE MW3 CLAIMANTS ALL OF THE ABOVE PLUS –

GARDENER MW3

PUBLIC LIGHTING

ATTENDANTS

DRIVER LABOURERS

ROADWORKER MW3

BURIAL GROUNDS WORKER

KITCHEN INSTALLER

GRADE MW4 CLAIMANTS (AND APT & C CLAIMANTS SCALES 1 AND 2) ALL OF THE ABOVE PLUS–

REFUSE DRIVERS

GARDENER SUPERVISORS

MW4

GLAZER

ROADWORKER MW4

SUPERVISORS - KITCHEN CONTRACT

GRADE MW5 AND APT & C SCALES 3 AND ABOVE – ALL OF THE ABOVE PLUS –

PAINTER

ROADWORKER MW5

TRADES SUPEVISOR (sic)”

7. In the third group, which was in fact a single Claimant, the terms of the grievance were the same as those in the first group above and the relevant part of the form ET1 was the same as that in the second group above. That is the grievance set out a claim that her job was rated as equivalent to those of a specified list of comparators and that it was of equal value to another separate list of comparators, and her ET1 set out a claim that her job was rated as equivalent to and/or rated as equivalent to a single specified list of comparators.

The Tribunal’s Judgment and Reasons

8. I have set out the terms of the Tribunal’s judgment above. The Employment Judge noted that the key issue was whether or not the Claimants could be allowed to rely in their complaints before the Employment Tribunal on comparators specified in their forms ET1 who were additional to or different from those specified in their written grievances and that the Respondent’s position was that they could not do so: having specified a comparator post in their grievances the Claimants had identified a specific complaint and their subsequent references to different comparators amounted to separate and distinct complaints. It is evident from her discussion at paragraph 25 that she considered that the case of 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”), required her to reject the Respondent’s submissions both as regards the matter of differences in comparators and as regards differences between the statement of the claims being “job rated as equivalent” and “job of equal value” claims ( see: Equal Pay Act 1970 s.192(b) and 1(2) (c)). Her reasoning appears to be encapsulated in a sentence at paragraph 25 which follows a reference to Lord Justice Pill having said in Sandwell that a grievance statement required only to be in the most general of terms where she states:

“I am satisfied that that in the context of the equal pay claims before the Tribunal, a heading of equal pay is sufficient.”

9. The case of Cannop and others v Highland Council sub nom Highland Council v TGWU and others [2008] IRLR 634 played no part in the reasoning of the Employment Judge in reaching her decision. She was referred to and considered the case of Brett & Others v Hampshire County Council UKEAT/0500/08 but distinguished it as it concerned the modified not the standard grievance procedure.

Relevant Law

10. I would refer to my discussion of the relevant law in the cases of Dundee City Council v McDermott & Others UKEATS/0026/10/BI and Perth and Kinross Council v Amery & Others UKEATS/0027/10/BI:

“[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 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 difference 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 and 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.”

11. The Dundee and Perth cases did not involve the “job rated as equivalent”/”jobs of equal value” distinctions as between grievance and forms ET1 that arise in the present claims. It is, accordingly, appropriate to note also the relevant provisions of section 1 of the 1970 Act. There is a general provision in subsection 1 that if the terms of a woman’s contract of employment do not include an equality clause, they shall be deemed to include one. There are three separate gateways to a claim under the 1970 Act – a claimant must be able to claim to be employed on like work with a male comparator, on work rated as equivalent to the work of a male comparator or on work of equal value to a male comparator. The reference to “work rated as equivalent” is to where the woman’s job and the man’s job have been given an equal value on a study undertaken for the purpose of evaluating the jobs done by employees in the relevant undertaking (see: section 1(5) of the 1970 Act). Such studies are often referred to as “Job Evaluation Schemes” and may be carried out by specialist consultants. Sections 1(2)(b) and (c) contain the relevant provisions regarding claims in respect of work rated as equivalent and work of equal value:

“(b) where the woman is employed on work rated as equivalent with that of a man in the same employment –

(i) if (apart from the equality clause) any term of the woman’s contract determined by the rating of the work is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable, and

(ii) if ( apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed and determined by the rating of the work, the woman’s contract shall be treated as including such a term.

(c) where a woman is employed on work which, not being work in relation to which paragraph (a) or (b) above applies, is, in terms of the demands made on her (for instance under such headings as effort, skill and decision), of equal value to that of a man in the same employment –

(i) if (apart from the equality clause) any term of the woman’s contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable, and

(ii) if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman’s contract shall be treated as including such a term.”

The Appeal

12. Mr McMillan clarified the Respondent’s position in relation to each of the three groups of claims.

13. Regarding the first group of claims, it was accepted that section 32 of the 2002 Act had been complied with so far as the Claimants’ complaint that they were paid less than male roadsweepers whose jobs had been rated as equivalent to theirs was concerned. Otherwise, the Employment Judge had failed to carry out the requisite comparative exercise the need for which arose because there was disparity between comparators and disparity regarding the specification of the comparisons being with jobs rated as equivalent/jobs of equal value.

14. So far as the second group was concerned, whilst the comparator jobs specified in the grievance had the same titles as those specified in the form ET1, the grievance was in respect of jobs rated as equivalent whereas the ET1, in addition to contending that the Claimants’ jobs had been rated as equivalent to the comparators’ jobs added the contention that they were of equal value to them. There had been no compliance so far as the equal value comparators were concerned.

15. So far as the third group was concerned, it was conceded that section 32 of the 2002 Act had been complied with (a) insofar as the forms ET1 contained complaints of less pay than that brought out in the job evaluation ratings for roadsweepers MW1, gardeners MW1, 2, and 3, and refuse collectors MW2, and (b) insofar as the forms ET1 contained complaints that the Claimants were employed on jobs of equal value to painters. Otherwise, no concessions were made; in all other respects, the complaints combined the disparities of both the first and second groups.

16. Mr McMillan presented the same argument as was advanced in the Dundee and Perth cases. He submitted that the Employment Judge in the present claims had reached a conclusion that suffered from the same flaws. She had found that material difference between the comparators in the grievances and comparators in the forms ET1 did not matter and that was wrong.

17. Regarding the change from “job rated as equivalent” to “jobs of equal value”, he submitted that they were quite different types of claim. If an employee alleges a failure to pay equal pay as compared to a comparator whose job is rated as equivalent, the employer was thereby directed to the relevant job evaluation studies for his assessment of the merits of the grievance. If the comparator job was found not to have been rated as equivalent, he may reject the grievance and consider that he is well founded in doing so. To say to an employer that the claim was that the comparator’s job was of equal value was quite a different matter.

18. For the Claimants, Mr Clark said that he felt that the Employment Judge had in fact carried out a comparison exercise. She had, he said, compared the statements in the grievances and in the forms ET1 and reached a view. So far as the jobs rated as equivalent/jobs of equal value point was concerned, he submitted that the purpose of a grievance was to enable an employer to have notice or to have an idea of what the complaint was. He referred to the fact that the grievances used the word “include” and that showed that they did not contain an exhaustive list. They gave the employers some idea of the posts they required to investigate and that was enough. The change from “job rated as equivalent” to “job of equal value” did not show that there was no correlation. It was irrelevant. Overall, the comparison should be at the lowest level, as in Sandwell.

Discussion and Decision

19. I remain of the view that where the comparators specified in the form ET1 differ from those specified in the grievance, a comparative exercise requires to be carried out, for the reasons discussed in the Dundee and Perth cases. The Employment Judge has not carried out the necessary comparative exercise; I reject Mr Clark’s submission to that effect. It seems clear from reading her discussion as a whole that she approached matters on the basis that, because of Sandwell, she did not require to do so. I will, accordingly, 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 their earlier intimated grievance, subject to the decision explained below regarding the separate “job rated as equivalent”/“job of equal” value issue that arises in respect of certain aspects of some of the claims and under direction that that question be answered in the affirmative in respect of the concessions made by the Respondent as referred to in paragraphs 13 to 15 above.

20. I turn then to the issue of the significance for s.32 purposes of the fact that a form ET1 states that the complaint is that the claimant did not receive equal pay for a job of equal value to that of her comparator whereas the grievance stated that her complaint was that she did not receive equal pay for a job rated as equivalent to her comparator.

21. I approach matters by considering first the purpose of the statutory grievance procedures. Put broadly, the hope was that the use of them would result in the facilitation and encouragement of conciliation and the avoidance of litigation.

22. I turn then to the statutory scheme. Under and in terms of the relevant provisions of section 32 and Schedule 2 to the Employment Act 2002, a system was set up whereby the employer would be put on notice as to the nature of the employee’s complaint prior to the employee being allowed to present that complaint to an Employment Tribunal. The purpose of that prohibition on presentation of a complaint and of the related provision requiring 28 days to elapse between the intimation of the grievance and presentation of the complaint was plainly to afford an opportunity to parties to resolve any matters which were capable of resolution without resort to the Tribunal. If an employer was, for instance, told that his employee had a grievance that he was not receiving holiday pay, that would alert the employer to examine his pay records to see if the employee was being paid holiday pay and in the event that they showed that there had been a failure in that regard, to agree to pay the employee whatever sum was due, thus avoiding litigation. If an employer received a grievance complaining that the employee was not receiving equal pay to men employed in specified “rated as equivalent” jobs, the employer would be alerted to check that assertion under reference to any relevant job evaluation studies. The employee would be able to rely on those studies whether or not the employer agreed with their findings. The employer would know that it was not a matter of considering his own response to the employee’s assertion, it being, rather a question of what was the objective assessment brought out in any job evaluation study. If a check of any such study showed that the assertion was well founded, then steps could be taken to seek a resolution. If the assertion was ill founded either because there were no relevant study results or because any such studies showed that the claimants were wrong – their jobs were not rated as equivalent to their named comparators – then, on the face of matters, the employer would be justified in rejecting the grievances.

23. Still considering the statutory scheme, if an employee was thereafter allowed to present a form ET1 claiming that she had been paid less than male comparators whose jobs were of equal value to hers, the employer would not have had a prior opportunity to consider the employee’s new and different assertion, namely that her job was of equal value which, as above noted, would have been a matter for the employer to take a view about himself, without reference to any objective job evaluation study. The chance to resolve the “job of equal value” claim without resort to the Tribunal would not have been afforded. The question of whether or not that was an issue that would require resolution by a Tribunal would simply not have been addressed during the 28 day period because it did not feature in the grievance. Put shortly, the purpose of the statutory grievance procedure would not have been achieved.

24. Those are the circumstances that have arisen in some of the present complaints where “equal value” claims appear for the first time in the forms ET1. I am persuaded that, in those cases, section 32 has not been complied with. That has the effect of excluding the “equal value” claims in group 2 and the order that I pronounce will, in addition to those matters referred to in paragraph 19, declare that the Claimants in the group 2 claims (as defined in the judgment of the Employment Tribunal dated 2 June 2010) have, to an extent, failed to comply with the provisions of section 32 of the Employment Act 2002 and that the Employment Tribunal cannot, accordingly, consider their claims insofar as they rely on section 1(2)(c) of the Equal Pay Act 1970.

United Kingdom Employment Appeal Tribunal