"1(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one.

(2) An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (the 'woman's contract'), and has the effect that -

(a) where the woman is employed on like work with a man in the same

employment -

(i) if (apart from the equality clause) any term in the woman's

contract is or becomes less favourable to the woman than a term of a similar kind in a 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;

(b) where the woman is employed on work rated as equivalent to 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;

...

(5) A woman is to be regarded as employed on working rated as equivalent with that of any men if, but only if, her job and their job have been given an equal value, in terms of the demand made on a worker under various headings (for instance effort, skill, decision), on a study undertaken with a view to evaluating in those terms the jobs to be done by all or any of the employees in an undertaking or group of undertakings, or would have been given an equal value but for the valuation being made on a system setting different values for men and women on the same demand under any heading.

...

2(1) Any claim in respect of the contravention of a term modified or included by virtue of an equality clause, including a claim for arrears of remuneration or damages in respect of the contravention, may be presented by way of a complaint to an employment tribunal.

...

(4) No determination may be made by an employment tribunal in the following proceedings -

(a) on a complaint under subsection (1) above,

...

unless the proceedings are instituted on or before the qualifying date (determined in accordance with section 2ZA below).

(5) A woman shall not be entitled, in proceedings brought in respect of a contravention of a term modified or included by virtue of an equality clause (including proceedings before an employment tribunal), to be awarded any payment by way of arrears of remuneration or damages -

...

(b) in proceedings in Scotland, in respect of a time before the period

determined in accordance with section 2ZC.

...

2ZA ...

(3) In a standard case [which includes an equal pay claim case], the qualifying date is the date following six months after the last day on which the woman was employed in the employment.

...

2ZC(1) This section applies, in relation to an award of any payment by way of arrears of remuneration or damages in proceedings in Scotland in respect of a woman's employment, for the purpose of determining the period mentioned in section 2(5)(b) above.

(2) ... that period is the period of five years which ends on the day on which the proceedings were instituted ... ".

"29(1) Schedule 2 (which sets out the statutory dispute resolution procedures) shall have effect."

Part 2 of Schedule 2 provides:

"Grievance Procedures

Chapter 1

Standard Procedure

Step 1: Statement of Grievance

6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer.

Step 2: Meeting

7(1) The employer must invite the employee to attend a meeting to discuss the grievance.

(2) The meeting must not take place unless -

(a) the employee has informed the employer what the basis for the

grievance was when he made the statement under paragraph 6, and

(b) the employer has had a reasonable opportunity to consider his response

to that information.

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the meeting, the employer must inform the employee of his decision as to his response to the grievance ...

...

Chapter 2

Modified Procedure

Step 1: Statement of Grievance

9. The employee must -

(a) set out in writing -

(i) the grievance, and

(ii) the basis for it, and

(b) send the statement or a copy of it to the employer.

Step 2: Response

10. The employer must set out his response in writing and send the statement or a copy of it to the employee.

... ".

Section 32 (which applies to tribunal jurisdictions which include that under section 2 of the Equal Pay Act 1970) provides:

" ...

(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

paragraph 6 or 9 of Schedule 2 applies, and

(b) the requirement has not been complied with.

... ",

Section 31 makes provision for adjustment of awards where a statutory grievance procedure has not, through the failure of the employee or the employer, been completed.

"1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

... "

Council Directive No. 75/117/EEC ("the Equal Pay Directive") provides:

"Article 2

Member States shall introduce into their national legal systems such measures as are necessary to enable all employees who consider themselves wronged by failure to apply the principle of equal pay to pursue their claims by judicial process after possible recourse to other competent authorities.

...

Article 6

Member States shall, in accordance with their national circumstances and legal systems, take the measures necessary to ensure that the principle of equal pay is applied. They shall see that effective means are available to take care that this principle is observed."

Proceedings before the employment tribunal

"These include road sweepers, refuse collectors and drivers and gardeners" "such as building labourers, painters and fitters mates".

The "Employment Tribunal Comparators" were described as:

"Other Cleaning Litter Posts, Inverleith Workshops, Fleet Maintenance, Refuse Collection Schemes, Saughton Winter Gardens."

In category 2 the "Grievance Comparators" were the same as those in category 1 but the "Employment Tribunal Comparators" were described as:

"Labourer, Plant Operative, Cleansing Labourer, Recycling Operative, Cleansing Driver, Slater, Chargehand Slater, Bus Driver."

In category 4 the "Grievance Comparators" were described as:

"Grade MW1 Claimants:

* Road Sweeper MW 1

* Gardener MW1

Grade MW2 Claimants:

* all of the above, plus -

* Gardener MW2

* Refuse Collector MW2

* Manual Handler APT&C

* Labourers

Grade MW3 Claimants:

* all of the above plus -

* Gardener MW3

* Public Lighting Attendants

* Driver Labourers

* Roadworker MW3

Grade MW4 Claimants (and APT&C Claimants

Scales 1 and 2):

* all of the above plus -

*Refuse Drivers

* Gardener Supervisors MW4

* Glazer

* Slater

* Roadworker MW4

Grade MW5 and APT&C scales 3 and above:

* all of the above plus -

* Painter

* Roadworker MW5

* Chargehand Slater"

The "Employment Tribunal Comparators" were described in the same terms as those in the preceding category. In a fourth category (category 3) the classes of comparators in the grievance document and in the ET1s had been identical; accordingly no issue of non-correspondence arose in relation to that category.

"[a] claimant should not be penalised for inserting a comparator in her grievance when the statutory grievance procedure does not require her to identify a comparator at all".

"51. The nature of the claimants' grievances and that of their claims left no room for the respondents to doubt that the claimants were complaining of being paid less for doing a job rated as equivalent or of equal value, than were men doing jobs 'included' in the examples, or of which the examples given 'were relevant'. When referring to comparators, the claimants indicated that those job types mentioned were not exhaustive. More significantly, the substance in both grievance and claim was the same. It was accepted that the claimants had no need to identify any comparators at the stage of submitting their grievances or indeed in their claim. As [counsel for some of the union-backed claimants] pointed out, a claimant may not be in a position, despite her best endeavours, to ascertain who the appropriate comparators are until the mechanism of tribunal orders for documents or additional information become available to her, but that would not be until after the presentation of her claim. Since, in claims of equal pay, the respondents hold most, if not all the cards, until that stage, she may not be in a position to hazard a guess at a comparator or group, or she may have information she believes to be sufficient to allow her to make a stab at identifying comparators. Even if a claimant submits a questionnaire in order to obtain further information, there is no legal obligation on the employer to respond to it. Where she inserts a comparator, the statutory procedures, as interpreted by the authorities, disclose no intention of penalising a claimant, who in both her grievance and her claim identifies comparative job types, especially if they derive from the same source, albeit that the job types are not identical. In my opinion, where the claimant has climbed the ladder by submitting her Step 1 grievance, including job types rated in a recognised format (the Green Book), followed by her claim, which also includes job types from the same source, although not identical ones, that difference should not be treated as the snake which forces her to return to Go."

At paragraph 56, she distinguished the circumstances of Canary Wharf and said:

"By contrast, the nature or essence of the claim and that of the grievance, as [counsel] emphasised, was never in issue in the instant proceedings. It was the reference to comparators in the grievance, some of which were altered in the subsequent notice of claim, which gave rise to the respondents' contention that they had failed to comply with the grievance procedure. The grievance - the action the employer had taken in relation to the claimants (by paying them less than men doing the same or lower jobs) - was both recognisable as a claim for equal pay and consistent in both grievance and claim."

At paragraph 57 she continued:

"57. I was also persuaded by the appeal to common sense in [counsel's] list of practical reasons why a claimant altering her comparator(s) between the stage of the grievance and claim should not have to submit a further grievance followed by a further claim. It frequently is to the claimant's advantage to select comparators from a range of job types, rather than to restrict herself to a single comparator. At the stage of selecting him/them, she is unlikely to have the benefit of information from a job evaluation study. Requiring a claimant to get her comparators in her grievance under para 6 right first time to start the process of complaining all over again would operate harshly, and potentially deny a claimant access to justice altogether if time bar also became a feature. The point too, that a claimant forced to begin again would be likely to include minimal information in the fresh complaint, would provide no assistance to the respondents in understanding better the grievance she was bringing, but simply multiply the internal processes they would require to complete in order to comply with the procedure. In demanding, in effect, that a claimant, should in [the Stefan Cross claimants' representative's] description, 'submit full blown pleadings' in her grievance, so as to ensure that it matched her later claim, the respondents were, in my opinion, insisting on the undue technical and over-sophisticated approach, which the EAT expressly rejected when considering the content of a para 6 Step 1 grievance."

"1. The claimants, whose grievances identified comparators whose job types were rated in the Scottish Council of Local Authority Services (Manual Workers) Scheme of Pay & Conditions of Service ('The Green Book'), satisfied the standard grievance procedure contained at Part II of Schedule 2 to the Employment Act 2002, even although the job types of the comparators identified in their subsequent claims to an employment tribunal, which were also rated in the Green Book, differed from those identified in their grievance; ... ".

Proceedings before the Employment Appeal Tribunal

"Did the Employment Tribunal err in law in concluding that it was sufficient that the grievance 'related' to the subsequent claim and not addressing the issue as to whether the relationship between the claim and grievance was sufficiently close, as required by Pratt and Canary Wharf?" (Notice of Appeal para. 6.4).

"IT IS ORDERED that the Appeal be allowed and that the matter be remitted to the same Employment Tribunal to consider the issue of whether section 32(2) of the Employment Act 2002 applies so as to prevent these complaints being presented in any respect, having regard to the fact that to determine that issue, it requires to consider whether each claimant has previously communicated a relevant grievance document to the respondents specifying comparator(s) that are not materially different from those specified in their forms ET1, unless in the view of the learned Vice President factors emerge which render such an arrangement impracticable or impossible in which case the matter be remitted to be heard by a differently constituted Tribunal ass directed by the Vice President."

Leave to appeal to this court was subsequently granted.

"From a consideration of both these paragraphs, it seems plain that the Tribunal's reasoning was to the effect that not only was it enough for the purposes of s. 32(2) that the claimant had, in her grievance document, sought to compare herself with any job type rated in the 'Green Book' but 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, on the view that she was not required to 'get her comparators in her grievance under para. 6 right first time'. It is difficult to resist the conclusion that the Tribunal's approach was to say that if both the grievances and the complaints presented to the Tribunal were about equal pay then that was enough ... ".

At paragraph 18 Lady Smith noted:

"At the heart of the respondents' submission lay a concern that if the Tribunal was correct, that meant that it was enough, at grievance stage, to provide only a broad and very general statement and leave the specification of comparators until the point where a complaint was being presented to the Tribunal. On the Tribunal's reasoning, it would be enough at grievance stage for an employee to state that she had a complaint about equal pay, an approach that was not supported by any of the authorities. Also, even if some comparators had been named at grievance stage, the Tribunal's approach gave the 'green light' to any comparator being added at ET1 stage. In neither of these circumstances would the employer have been put in a position of being able to understand the nature of the grievance prior to the start of proceedings. For that, an indication of the comparator being relied on required to be given".

"general nature of the complaint would be the same at ET1 stage even if no comparator had been specified at grievance stage. There was no requirement for any qualitative analysis to be carried out."

Counsel for the other union-backed claimants adopted these submissions, adding that the ET1 only needed to "relate" to the grievance. She added:

"The complaint need not be identical; it was enough if they were essentially the same and provided both were equal pay claims that would be enough."

The solicitor appearing for the Stefan Cross claimants adopted the submissions of both counsel. Under reference to a particular claimant's grievance letter and the ET1 he submitted that it was clear that they both related to an equal pay claim and that was enough. She had in fact gone further than was necessary in her grievance letter and gone some way towards setting out the basis of her complaint as well. There was, it was argued, no need to specify any comparator in the grievance document. Accordingly, although the true issue for determination by the Employment Appeal Tribunal was whether the decision of the employment tribunal (which related only to the claims by the Stefan Cross claimants) was sound in law and although it was unnecessary for the Stefan Cross claimants (who had specified comparators) to maintain that a valid grievance document need say no more than that the grievance was in respect of unequal pay, all the claimants presented their submissions on the latter basis.

" ... it seems to me that the exercise of comparison is so fundamental to a complaint that an employer has failed in his equal pay obligations, that there must be some specification of comparator, at least by reference to job or job type in the grievance document. Without that, the employer cannot be expected to appreciate that a relevant complaint is being made. It cannot be enough to state that an equal pay claim is being made without saying more. That would not amount to a relevant complaint of breach of the 1970 Act requirements."

At several subsequent passages Lady Smith speaks, with reference to a grievance document, of a "relevant complaint". She later said (at paragraph [36]):

"It follows that I accept the respondents' submission that, the point having been taken by them, the Tribunal in these cases required to satisfy itself that each complaint was essentially the same as that which had been complained of in that claimant's grievance document. That included the need to check that comparator(s) which were substantially the same or not materially different, were specified in both documents."

Submissions in this court

Discussion

" ... each case which raises the question whether a national procedural provision renders application of Community Law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances" (Van Schijndel and Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR 1-4705 at para. [19]).

The Employment Appeal Tribunal has observed that the sentence quoted stresses the need to look at the question broadly (Unison and Another v Brennan at para. 51).

"concern[ed] a matter in relation to which the requirement in paragraph 6 ... of Schedule 2 ... [had] not been complied with". (Section 32(2)).

To satisfy this provision there had to be some correlation between the grievance relied on and the claim submitted. If, for example, a grievance had been stated by an employee to an employer but, on a fair reading of it and of the claim form, they were dealing with unconnected matters, it is plain that the tribunal would, for the time being, have no jurisdiction to entertain the claim presented. As Burton J. put it (possibly tautologously) in Shergold at paragraph 35:

" ... the grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance".

Buxton J. there mentioned, but only by way of an example of a non-relationship, a situation where the grievance in writing related to unpaid holiday pay and the proceedings, which were then sought to be issued, were based upon race discrimination or sex discrimination with no relevance to any question of holiday pay.

"[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".

At paragraph 21 he added:

"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."

"[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".

Although, at paragraph 51 of its reasons the Employment Tribunal said " ... the substance in both grievance and claim was the same", it is not clear what comparative exercise the tribunal had actually undertaken in order to reach that conclusion. The mere fact that the comparators referred to in the tribunal claim came from the same source (the "Green Book") as comparators referred to in the grievance document did not necessarily mean that essentially the same complaint was being made in the former as in the latter.

Disposal