EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Emslie Lord Osborne	[2012] CSIH 11 XA15/11 and XA16/11 OPINION OF LADY PATON in appeal under section 37(1) of the Employment Tribunals Act 1996 by VICTORIA AMERY and others, C BREEN and others Claimants and Appellants; against PERTH & KINROSS COUNCIL and DUNDEE CITY COUNCIL Respondents: _______

Claimants and First Appellants (Unison and Unite claimants): Summers QC; Thompsons, Solicitors

Claimants and Second Appellants (GMB claimants): Shead; Digby Brown

Respondents: Truscott QC; MacRoberts LLP

10 February 2012

Employment law: equal pay claims and the naming of comparators

[1] Employees of Perth & Kinross Council and Dundee City Council presented equal pay claims to two Employment Tribunals. They had already gone through the mandatory grievance procedure introduced by section 32 of the Employment Act 2002 and intended to encourage negotiation and settlement of claims without resort to tribunals and courts.

[2] As was noted in the decisions of the Employment Tribunals (paragraphs 7 and 10 respectively):

"The agreed facts were that (1) all the claimants had submitted grievances which stated they were claiming equal pay. (2) In certain grievances that was all that was said and no comparators were named. (3) In certain grievances, comparators were named, and in certain cases the comparators mentioned in the subsequent claim form [ET1] were materially different from the comparators named in the grievance."

[3] At pre-hearing reviews before the Employment Tribunals, each Council argued that certain grievances failed to satisfy the requirements of the statutory procedure, in particular paragraph 6 of Schedule 2 to the 2002 Act. Each Council accepted that "where the grievance stated no more than that the claimant was complaining about equal pay, then the claimant had complied with the requirement in paragraph 6 of Schedule 2 in respect of any tribunal claim about equal pay" (paragraph 8 of the decision of the Employment Tribunal). However the Councils contended that where grievances named comparators but were then followed by forms ET1 specifying different comparators, the grievance underlying the form ET1 was not essentially the same as the earlier intimated grievance. As a result the employee had not complied with the statutory procedure, and in particular had failed to satisfy the correlation principle namely that:

"... the complaint to the employer must be essentially the same complaint as is subsequently advanced before the tribunal."

(Canary Wharf Management Ltd v Edebi [2006] ICR 719, Elias J at paragraph 21). In those claims therefore, it was contended that the tribunals had no jurisdiction.

[4] The Employment Tribunals considered the Councils' arguments, and concluded that all the claims satisfied the statutory requirements, that none was excluded from the tribunal's jurisdiction, and that accordingly all the claims should proceed to a hearing on the merits.

[5] The Councils appealed to the Employment Appeal Tribunal (EAT). In a composite decision dated 11 January 2011, the EAT recorded the situation as follows:

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

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

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

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

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

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

[6] The EAT ruled that the decision of the Inner House in Cannop v Highland Council 2008 SC 603 was binding, and remitted the claims challenged to the same Employment Tribunal "to consider whether in the case of each claimant the grievance underlying the form ET1 was essentially the same as the earlier intimated grievance" (paragraph 41).

[7] The employees appealed to the Court of Session.

Statutory provisions

[8] Section 32 of the Employment Act 2002 provides inter alia:

"(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."

[9] The requirements referred to in section 32 are set out in Part 2 of Schedule 2 to the Act. The relevant requirement in this case is the "standard procedure" in Chapter 1 of Part 2, which provides inter alia:

"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 and notify him of the right to appeal against the decision if he is not satisfied with it."

[10] Failure to comply with Step 1 has the major consequence that the employee is barred from presenting a claim to a tribunal: section 32 of the 2002 Act. Failure to comply with Step 2 has the significant but less disabling consequence that the compensation awarded may be reduced: section 31 of the 2002 Act.

Conflicting lines of authority

[11] The legislation referred to above led to conflicting lines of authority, as outlined below.

(a) Grievances where no comparators are named

[12] In 2008, the EAT in Scotland concluded that a written statement of grievance about equal pay which failed to name a comparator did not comply with the statutory requirements. As was explained in Highland Council v TGWU and others (No 1) [2008] IRLR 272 at paragraphs 31-32:

"31 ... 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....

32 ...The employer is entitled to know the essence of what it is that he has to respond to. He is entitled to approach the fixing of the stage two meeting, including, for instance, the identification of those who should be present at the meeting, on the basis of such knowledge, all with a view to trying to resolve the issue. He is not, in my view, being provided with that material if all he is being told is that his employee has an equal pay complaint. To regard that as enough would be to reduce the stage one grievance communication to a relatively meaningless level of generality or tokenism. That would not accord with a statutory scheme that is intended to try and bring about an efficient and effective practical result."

[13] That view was, however, expressly not approved by the Inner House of the Court of Session at paragraph [30] of Cannop v Highland Council 2008 SC 603. Further, the Court of Appeal in England took a different approach in Suffolk Mental Health Partnership NHS Trust v Hurst and others; Arnold and others v Sandwell Metropolitan Borough Council [2009] ICR 1011 (variously referred to as "Suffolk", "Hurst", or "Sandwell"). There, the Court of Appeal in paragraphs 49, 51, 58, 83, and 95, approved the opposite conclusion reached by Elias J, President of the EAT in England, who, while acknowledging and sympathising with the careful reasoning of the EAT in Scotland, stated:

"62......In my judgment, it is enough for the claimant to indicate that he or she is pursuing an equal pay claim. That is compatible with the definition of a 'grievance'. The employee has made it plain that she objects to action taken by the employer, namely the failure to pay the sum due to her, and by identifying the claim as an equal pay claim she is also revealing the reason why she is saying that. She is not, for example, contending that there has been a failure to pay as a result of some mistake or because overtime hours have not been counted, or because her rate is below the minimum wage, or anything of that nature. The employer knows that the allegation is that a comparable man doing equal work (whether that is work rated as equivalent, equal value, or like work) is receiving more than she is and he ought not to be. That much is inherent in the action being identified as an Equal Pay Act claim......

64. This construction is supported, in my view, by considerations of policy. The effect of construing the concept of 'the grievance' too widely is that claimants - who will often in this jurisprudence be litigants in person - are denied the opportunity to bring their claims altogether if they have not raised a relevant grievance in time. That is a draconian step to take for what might be a purely technical failure to comply with the regulations. In my judgment it is particularly important to recognise that the logic of the argument advanced by the employers is that even if the employee in fact provides orally all relevant details of the claim so that the employer has every opportunity to deal fully with the grievance (and indeed perhaps he even does so, albeit not to the employee's satisfaction), the failure to comply with paragraph 6...by formally identifying the comparators (by name or job) will still prevent the tribunal from hearing the claims. That would in my view be a deeply unattractive position for the law to adopt and would be wholly inconsistent with the objective of the statute.

65. Moreover, I do not accept the submission that the contrary construction renders the requirement to state a grievance a dead letter. If the employee only provides the bare statement and does not, when providing the basis of the claim, assist further by providing details of the claim sufficient to enable the employer to understand and seek to resolve the grievance, that can still have very real adverse practical consequences for the employee. As I have pointed out, he or she can be subject to a reduction of compensation of up to 50%. No doubt if the tribunal thought that the employee was deliberately or cynically refusing to engage in the grievance process, the maximum amount, or something very close to it, would be awarded."

(b) Grievances naming comparators, but materially different comparators specified in form ET1

[14] In the present case, it is the respondents' position that a proper reading of Cannop v Highland Council cit sup reveals a ratio to the effect that any claim in which the comparators named in form ET1 are materially different from those named in the grievance statement must be remitted back to the Employment Tribunal for consideration as to whether the claim in form ET1 is essentially the same as that intimated in the earlier grievance (thus satisfying the correlation principle referred to in Canary Wharf cit sup). If they are not essentially the same, the tribunal would have no jurisdiction.

[15] By contrast, the appellants rely upon the Court of Appeal in Suffolk cit sup (a decision issued after Cannop, but concerning a different factual situation in that the grievances did not name comparators), where the court counselled against an over-strict approach to the correlation principle. As Pill LJ noted in paragraph 57:

"(g) The correlation principle in my view operates in favour of a 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.

(h) The need for successive grievance statements would prejudice a complainant because arrears of pay are paid for a period of six years fixed by reference to the date of the subsequent complaint to the tribunal. Limitation problems will also arise".

Submissions for the first appellants (Unison claimants)

[16] Mr Summers QC invited the court to allow the appeal and to remit the cases to the Employment Tribunal to proceed as accords (in other words, to proceed to a hearing on the merits). An employee was not required to provide details of comparators at Step 1 of an equal pay grievance. Only at Step 2 did the employee have to provide the "basis for the grievance", such as details of comparators. It followed that if details of comparators were gratuitously provided at Step 1, it mattered not that different comparators were named in the claim to the tribunal (form ET1). It would be absurd if someone with no statutory obligation to give such details at Step 1 nevertheless gave the details and was then barred from the tribunal because different details were later given, whereas someone who had not given such details at Step 1 was not barred. The terms of paragraphs 6,7, and 9 of Schedule 2 were clear. In the standard procedure, all that was required in terms of paragraph 6 at Step 1 was a written statement of the wrong alleged, namely a breach of the Equal Pay Act 1970 (or some equivalent formulation such as "an equal pay claim"). It was only at Step 2 that details were required in terms of paragraph 7. If the modified procedure applied (i.e. where an employee had left the employment) then paragraph 9 ruled, and the employee had to state both the grievance and the basis together. But the modified procedure did not apply in the present case. Both employer and employee could be penalised in the event of non-compliance with the procedures in paragraphs 7 and 9: but importantly, a failure to comply with paragraph 6 had the draconian effect of debarring the employee from a tribunal.

[17] Senior counsel further submitted that too much reliance had been placed upon the correlation principle. Reference was made to Suffolk cit sup paragraphs 57-58; 64; 67; 71-72; 80-81. Canary Wharf cit sup was distinguishable from the present case. In that case, there had been a complete disjunction between the content of the grievance and that of form ET1. The background to the correlation principle could be found in Shergold v Fieldway Medical Centre [2006] ICR 304, but significantly Burton J emphasised at paragraphs 26 and 27 that an over-technical approach should be avoided as it would frustrate the aim of the 2002 Act.

[18] As for the decision in Cannop cit sup, the Inner House had, at paragraph [30], expressly disavowed any intention to comment upon a situation where no comparators were named in the grievance. Nor had the Inner House expressly ruled upon a situation where the comparators named in form ET1 were materially different from those named in the grievance. Senior counsel therefore invited this court to take the view that Cannop was not binding in the circumstances of the present case, despite others' attempts to read a ratio into the court's remit to the tribunal: cf Cross and Harris, Precedent in English Law (1991) page 47. The guidance given by the Court of Appeal in Suffolk should be applied, a fortiori as the Supreme Court had rejected one employer's attempt to appeal that decision. The approach in Suffolk was currently being followed by tribunals in England: see, for example, Sefton Metropolitan BC v Hincks UKEAT/00092/11/SM, 14 July 2011, Underhill J at paragraphs 7 and 8. In the present case, it was unnecessary for the Employment Tribunal to compare the grievance with form ET1, as no issue other than the naming of different comparators had been put forward as a failure to satisfy the correlation principle.

[19] In all the circumstances, the EAT had erred in remitting the cases to the Employment Tribunal for comparison of the grievances with forms ET1. The appeal should be allowed, and the cases remitted to the tribunal with the simple direction to proceed as accords (i.e. to proceed to a hearing on the merits).

Submissions for the second appellants (GMB claimants)

[20] Mr Shead for the second appellants adopted the submissions made on behalf of the first appellants. Reference was made to Suffolk cit sup, paragraphs 57, 64, and 95; Sefton Metropolitan BC cit sup, paragraphs 5, 8, and 10; and Cannop cit sup, paragraphs [17], [21]-[22]; [26]-[28]. The Inner House in Cannop did not have the benefit of the decision of the Court of Appeal in Suffolk. The Court of Appeal disagreed with the approach adopted by Lady Smith in Highland Council (No 1), but did not take issue with the Inner House as they had expressly not addressed an issue which they regarded as hypothetical in their case. Thus Cannop should not be regarded as binding in relation to the particular issue before this court. It was therefore unnecessary to convene a larger court. The appeal should be allowed, and the orders of the Employment Tribunals restored.

Submissions for the respondents

[21] Mr Truscott QC for the respondents submitted that a process of detailed comparison of the written grievance and form ET1 was indeed necessary. The employee could always make an application to amend, although it was accepted that if there were no correlation, the Employment Tribunal would not have jurisdiction and therefore could not address any matter such as amendment or equal pay. An application to amend could however be made where a grievance mentioned comparators A and B and form ET1 named only comparator A. Equal pay grievances had to specify a comparator. An equal pay grievance in bald terms did not constitute sufficient information: it begged the question, equal pay "with whom?" In a claim for sexual harassment, it was not sufficient simply to state the grievance as "sexual harassment" without giving details of the alleged harasser. Similarly the very essence of equal pay required the identity of the comparator.

[22] A claim naming one comparator was one cause of action. Another claim naming another comparator was a separate cause of action. So the naming of a different comparator meant that there was a different cause of action. The Court of Appeal in Suffolk had set the threshold too low. Their judgment had been policy-driven, and did not contain any persuasive legal reasoning which might assist the Court of Session. This court had to focus upon the Employment Tribunal's decision, as was emphasised in Scottish Midland Co-operative Society v Cullion [1991] IRLR 261 paragraph 10. The EAT was correct in its approach to that decision. The effect of the judgment of the EAT was to remit cases back to the tribunals to see if the grievance underlying each claim was essentially the same as that in form ET1.

[23] Because of the nature of the complaint in an equal pay claim (which was in essence sexual discrimination in pay, not a claim that wages were unfair), such a grievance could not be reduced to a bald statement intimating that the grievance was about "equal pay". On the contrary, it was necessary to say "Mr A is earning more than me, although we do the same work (or equal work)". While paragraphs 30 to 34 of the EAT judgment were not approved by the Inner House in Cannop, they represented an articulate statement of the reasons why the grievance in an equal pay claim had to contain more than a simple statement that the grievance was about equal pay. If the Inner House in Cannop had accepted that such a simple statement was sufficient, then there would have been no need for their remit to the tribunal. Because of their remit, an inference could be drawn that the Inner House had not accepted that such a simple statement was sufficient.

[24] Senior counsel further submitted that the subparagraphs listed by Pill LJ in paragraph 57 of Suffolk did not disclose any substantial legal reasoning, but merely

policy-based observations. Wall LJ had not demonstrated an open-minded progression of reasoning. A grievance might not have to contain full particulars of the claim: but it did have to contain a comparator. An employee always had the opportunity of lodging a fresh form ET1 on the basis of a different grievance; or if the tribunal had jurisdiction because of the first grievance, the employee could seek to amend.

[25] The appeal should be dismissed and the matter remitted to the Employment Tribunal to see whether the comparators stated in the grievance correlated with the comparators stated in form ET1.

Discussion

[26] The grievance procedure introduced by the Employment Act 2002 was intended to encourage negotiation and settlement of employment claims without resort to tribunals and courts. However one consequence of its status as an essential prerequisite of tribunal proceedings has been a proliferation of disputes as to whether or not there has been compliance with the statutory procedure. This is one such dispute.

[27] Three questions arise:

[28] First, in the context of equal pay, whether it is sufficient to satisfy Step 1 of the standard grievance procedure for the employee to send a written statement to the employer that he or she is pursuing an equal pay claim, without giving any further details, and in particular without specifying a comparator.

[29] Secondly, again in the context of equal pay, if an employee chooses to give further particulars in the grievance statement (for example, by naming a comparator or comparators), whether the employee's subsequent form ET1 specifying a different comparator or comparators can be regarded as essentially the same claim such as to satisfy the correlation principle.

[30] Thirdly, to what extent the answers to the foregoing questions may affect employment disputes more generally.

[31] We deal with each question in turn.

(1) Whether Step 1 is satisfied by a written statement that the grievance concerns equal pay, without any further particulars

[32] In Highland Council (No 1), quoted in paragraph [12] above, the Scottish EAT reasoned that a grievance concerning equal pay must by definition name the comparator(s). However that reasoning was not approved by the Inner House in Cannop cit sup at paragraph [30]. Moreover the approach adopted by the Scottish EAT was expressly disapproved in the subsequent decision of the Court of Appeal in Suffolk cit sup. The Court of Appeal reached the clear conclusion that, in an equal pay claim, all that was required at the stage of a written statement of grievance (Step 1 of the standard procedure) was an indication that the claimant was pursuing an equal pay claim. At that stage, it was not necessary to give any further details such as comparators, or departments, or rates, or grades, or time periods, or the relevant paragraphs of a collective agreement. As Pill LJ observed at paragraphs 57 and 58 of Suffolk:

"57. .....(i) Merely to state that the claim is made under the 1970 Act is not a surrender to tokenism. It excludes other types of claim often made to employment tribunals. It establishes the necessary statutory basis for the claims.

(j) In this context, the statutory language does not suggest that an elaborate statement is required. Section 32 requires compliance with paragraph 6 or 9 of Schedule 2. Paragraph 6 requires only that the grievance is set out in writing. Not even the basis for the claim need be stated, though I very much doubt whether the present issue should turn on the distinction between what Mr Stafford [senior counsel for Metropolitan Borough Council] called the "what" and the "why". That would lead to further sterile argument.

(k) Notwithstanding the above, further particulars will normally be expected during stage 2 but failure to provide them does not have the same draconian effect as failure to comply with step 1. ........

58. Bearing in mind those factors, my conclusion, in these equal pay claims, is that it was sufficient by way of a statement of grievance to inform the employer that the claim was brought under the 1970 Act. I agree with the conclusion and reasoning of Elias J in the present cases [quoted in paragraph [13] above]. Further detail was not required. In an equal pay context, to require particularisation in advance of the negotiation encouraged by the statute would often be to create a substantial obstacle to claims before employment tribunals which cannot, in my view, have been intended by Parliament."

[33] Wall LJ agreed with Pill LJ, noting at paragraphs 80 to 83:

"80. My second heading relates to the decision of the Employment Appeal Tribunal in Scotland in Highland Council v Transport and General Workers' Union [2008] IRLR 272 and the decision of the Court of Session in the same case, entitled Cannop v Highland Council [2008] IRLR 634.

81. Employment law is one of the few areas in which employment tribunals and the Employment Appeal Tribunal exercise concurrent jurisdiction, and indeed in which the President of the Employment Appeal Tribunal in England is entitled to sit in Scotland and vice versa. Since there appears to be a conflict of opinion as to the meaning of paragraph 6 of Schedule 2 to the 2002 Act between the English and the Scottish Appeal tribunals, it is, in my judgment, important for this court to resolve it.

82. It is, perhaps, fortunate, that the Court of Session took the view that it was neither necessary nor desirable to express an opinion on the question of whether comparators need to be specified in the grievance document in an equal pay dispute. It also held that in so far as the employment tribunal and the appeal tribunal had expressed opinions on what the Court of Session described as the "hypothetical question" (namely whether an employee who had simply stated that she had an equal pay grievance (and nothing more) had satisfied paragraph 6 of Schedule 2 to the 2002 Act) those opinions were obiter.

83. There is, accordingly, in my judgment, nothing in the Court of Session decision to inhibit this court in preferring the reasoning of Elias J to that of Lady Smith. Both for the reasons given by Elias J and Pill LJ, as well as in the light of the view which I have taken of the statutory provisions, I have no hesitation in so doing, much as I understand and sympathise with Lady Smith's reasoning. It seems to me, however, that much of what Lady Smith seeks to achieve can be achieved in practice by a sensible operation of the system"

[34] The approach adopted by the Court of Appeal did not appear to strike the House of Lords as erroneous, as one employer's application for leave to appeal was refused by the Appeals Committee comprising Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Mance.

[35] Employment law applies throughout the United Kingdom (cf. Wall LJ in paragraph 81 of Suffolk, quoted in paragraph [33] above). As Lord Mayfield, then the judge in the Scottish EAT, commented in Brown v Rentokil Ltd [1992] IRLR 302:

" ... this court, being part of a United Kingdom body in the field of employment law, would only depart from an opinion of the Court of Appeal on a matter which was purely related to an aspect of Scots law ..."

Accordingly, this court should in our view follow the guidance given by the Court of Appeal in Suffolk unless there are compelling reasons suggesting otherwise.

[36] We have not found such compelling reasons. The Inner House in Cannop did not express an authoritative view which could be regarded as contradictory to the approach in Suffolk. On the contrary, the Inner House in paragraph [30] was careful to state that they made no decision in relation to what was regarded as a hypothetical question in the circumstances of that case.

[37] We shall therefore follow the guidance given by the Court of Appeal in Suffolk. We are fortified in that approach by taking an overall view of the various stages of the grievance procedure as set out in the Schedule to the Employment Act 2002. Once the employer is alerted to an equal pay claim by the written statement of grievance, a meeting between the employer and employee must take place. Prior to that meeting, the employee must inform the employer of the basis of his or her claim. At Step 2 the employee is obliged by statute to give the details of the grievance, for example comparators, types of work, departments, rates, grades and so on, thus ensuring that the meeting will be useful in the context of negotiation and possible settlement. But in terms of the statute it is not mandatory that such particulars are given at the very beginning (Step 1) when the written statement of grievance initiates or triggers the whole grievance procedure. In particular an employee is not debarred from proceeding to an Employment Tribunal simply because such details (or any of them) were not included at Step 1 in the written statement of grievance. It is important, in our view, not to import into that initial stage of the extra-judicial grievance procedure any of the formalities or restrictions more appropriate to court procedure, with its strict rules governing pleadings, questions of fair notice, and the scope of any subsequent procedure.
[38] It follows that any observations and conclusions to the contrary reached by the Scottish EAT in Highland Council (No 1) and in the present case fall to be disapproved.

(2) Whether the naming of certain comparators in a written statement of grievance concerning equal pay restricts the choice of comparators in the subsequent form ET1 lodged with the Employment Tribunal

[39] The factual background in Cannop was similar to that in the present case, in that certain comparators were named in equal pay grievances, but the comparators specified in the subsequent form ET1 were not the same. Prima facie therefore it might be thought that the resolution of the issues raised in the present case could be found in the decision in Cannop. However we are not persuaded that that is so, for two reasons.

[40] First, in Cannop there is no clear ratio ruling that, in such circumstances, an exercise of comparing and contrasting the comparators specified in the equal pay grievance and in the equal pay form ET1 must be carried out to see whether the grievance underlying the form ET1 is essentially the same as the earlier intimated grievance. Indeed at paragraph [32] the Inner House expressly states:

"The order made by the Employment Appeal Tribunal, in so far as it remitted to the employment tribunal, can be read as deciding that, in every case, the statement of grievance must specify the comparator or comparators relied on, and that these must not be materially different from those relied on in the ET1. That issue does not arise for decision in this case and we express no opinion on it, one way or the other ... [emphasis added]"

We are not prepared to try to draw any inference from the remit which was in fact made by the Inner House to the tribunal, even although a logical approach seeking to ascertain the reason for the remit would seem to produce an answer favourable to the respondents in this case. In our view, it would be inappropriate in a matter of such importance, with such far-reaching consequences, to attempt to infer and articulate a ratio from a remit where the relevant issue had expressly not been opined upon.

[41] Secondly, the law has developed since the decision of the Inner House in Cannop. We accept that the precise question which has arisen in this case was not before the Court of Appeal in Suffolk. Nonetheless Suffolk provides some guidance. As Pill LJ said at paragraph 57(g):

"The correlation principle in my view operates in favour of a 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"

[42] We agree. An employer will generally have full information about the pay structure. The grievance statement simply triggers a negotiation procedure, during which details of the equal pay claim ("the basis" of the claim) will be forthcoming. Discussions will then take place. In the course of these discussions, some comparators may be named, some abandoned, some added, some adjusted or altered. In the context of extra-judicial discussions and negotiations, we cannot accept that Parliament intended that a claimant who had volunteered some information about comparators at Step 1 should be restricted to those comparators at all future stages (unless able and permitted to amend) such that his or her form ET1 naming materially different comparators would be regarded as not being essentially the same complaint as that made in the grievance, with the consequence that the employee would be barred from proceeding further to the tribunal and would be relegated to the beginning of another grievance procedure. As Underhill J (President of the EAT) concluded in paragraph 8 of Sefton Metropolitan Borough Council v Hincks UKEAT/0092/11/SM, 14 July 2011:

" ... I agree that, although the present issue [namely, details of comparator(s) volunteered at Step 1 differing from details of comparator(s) given in form ET1] was not directly decided by the Court of Appeal in [Suffolk], the underlying principle appearing from that case should apply equally. I see no reason why the fact that the GMB claimants chose to go further (as it now transpires) than they were obliged to, and named a comparator, means that their claim should be regarded for the purposes of section 32(2) as limited to a claim by reference to that comparator. For the reasons give by Pill LJ, and also in the concurring judgment of Wall LJ, it is important to construe these unsatisfactory provisions, so far as possible, in such a way as to prevent either claimants or respondents being caught in purely technical traps."

[43] In the present case, the employers objected to certain claims solely on the ground that the comparators named in form ET1 differed from those named in the written statement of grievance. In the light of the guidance in Suffolk (followed in Sefton) we consider that objection to be without merit. We are therefore minded to allow the appeal, recall the remit set out in paragraph [41] of the decision of the EAT, and remit the cases to the Employment Tribunal to proceed as accords i.e. to proceed to a hearing on the merits, as originally ordered by the tribunal. It is therefore unnecessary for the tribunal in this case to consider the question of correlation in the context of the comparators named in the grievances and in forms ET1.

(3) Whether the answers to the foregoing questions affect employment disputes more generally

[44] In our view, there is sufficient in Suffolk to guide courts and tribunals on the particular issue of the naming of different comparators in equal pay grievances and forms ET1, all as noted above. Any objection by an employer based solely upon the absence in the grievance of named comparators, or upon the naming of different comparators in the grievance and in form ET1, is therefore unlikely to succeed. But we agree with the observations of Pill LJ at paragraphs 61-62 of Suffolk where he noted that:

"61. I have formed a clear view in an equal pay context but am reluctant to give carte blanche to prospective claimants in all potential cases merely to give, and only to give, a heading such as unfair dismissal, harassment, victimisation, sex or race discrimination or a combination of these. A statement of facts will often be appropriate, the cause or causes of action plainly emerging and incantation of the statute not essential. There will be causes of action and cases in which particulars can readily be given by a potential claimant. For example, there are likely to be cases in which reliance is to be placed on a single event such as selection of a man rather than a woman for a particular job on a particular occasion. There could be cases in which a potential claimant intends to rely on only one of several potential events. In either case, failure to identify the event relied on could lead to a substantial amount of unnecessary work for the employer and amount to an abuse of process.

62. What purports to be a grievance statement could so mislead or distract that it is an abuse of the procedure contemplated by Parliament. It would be open to the tribunal to hold such a statement was not a statement complying with paragraph 6 or 9 of Schedule 2. I would expect such cases to be rare. It is in the interest of potential claimants to initiate the procedure in a constructive way which is conducive to successful negotiation."

[45] We therefore reserve our opinion on the nature and effect of the correlation principle in circumstances materially different from those outlined in the first two questions.

Decision

[46] For the reasons given above, we shall allow the appeal, recall the remit by the EAT set out in paragraph [41] of the decision dated 11 January 2011, and remit to the Employment Tribunal to proceed as accords. For the avoidance of doubt, we confirm that these cases should now proceed to a hearing on the merits as originally ordered by the tribunal, as the only objection taken by the Councils related to the naming of different comparators in form ET1, and we have ruled that objection to be without merit (cf section 32(6) of the 2002 Act).

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Emslie Lord Osborne	[2011] CSIH 11 XA15/11 XA16/11 OPINION OF LORD EMSLIE in appeals under Section 37(1) of the Employment Tribunals Act 1996 by (i) VICTORIA AMERY and OTHERS and (ii) C BREEN and OTHERS Claimants and Appellants; against (i) PERTH & KINROSS COUNCIL and (ii) DUNDEE CITY COUNCIL Respondents: ______

Claimants and First Appellants (Unison and Unite claimants): Summers QC; Thompsons, Solicitors

Claimants and Second Appellants (GMB claimants): Shead; Digby Brown

Respondents: Truscott QC; MacRoberts LLP

10 February 2012

[47] I am grateful to your Ladyship for detailing the factual background to these appeals, and for identifying the various legal conflicts which have arisen as to the intended meaning of the (now repealed) procedural requirements under the Employment Act 2002 and relative regulations. Since I am, with regret, unable to share some of your Ladyship's views and conclusions, and would for my own part favour a different disposal of certain aspects of both appeals, it is appropriate that I set out brief reasons as to why that is so. For convenience, I shall follow the same order in considering the three principal questions identified at paragraphs [28]-[30] of your Ladyship's opinion.

Question 1

[48] On the first question whether it is sufficient, under paragraph 6 of Schedule 2 to the 2002 Act, for an initial statement of grievance to say no more than that it proceeds under the Equal Pay Act 1970, I have previously expressed concern as to interpretations of the Act and regulations which arguably deprive them of practical content. In my dissenting opinion in the case of Caroline Aitchison and Others v South Ayrshire Council 2011 CSIH 72, at paragraph [36], I said:

"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 Suffolk 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 1) 2008 IRLR 272 (EAT); Cannop v Highland Council 2008 IRLR 634 (Inner House); and (the Suffolk case) (Wall LJ in the Court of Appeal at paras. 82-83.). If the statutory requirements have in some quarters been treated as having little or no content in these areas, it might be argued, then it would be inappropriate to give them any greater content here."

[49] Had it been possible to turn the clock back and consider the whole matter afresh, there is perhaps much to be said in favour of Lady Smith's views in Highland Council v TGWU and Others (No 1), as quoted by your Ladyship at paragraph [12] above, and correspondingly against the contrary conclusion reached by the Court of Appeal in Suffolk. By way of illustration, the following points come to mind:

(i) The Suffolk approach arguably emasculates the procedural requirements to an
unacceptable degree. The duty under paragraph 6 of the Schedule is to "set out" the grievance, not merely hint at its existence, and it is not without significance that the 28-day negotiation period prescribed under section 32(3)(b) runs from that point rather than any later stage.

(ii) A requirement to make some genuine disclosure of the nature of an equal pay
grievance at the initial "setting out" stage is not obviously too much to ask of the employee concerned. A person aggrieved may be expected to have some idea of what he or she is aggrieved about.

(iii) With these considerations in mind, there is room for doubt as to whether paragraphs 6 and 7 of the Schedule were necessarily intended to represent two distinct steps in the formulation process. For one thing, there would seem to be no need for a written intimation procedure under paragraph 6 unless the idea was for something useful to be conveyed. For another, it is not implausible to read paragraph 7(2) as directed back to the content of the initial written "setting out". With only a slight change of order, paragraph 7(2) would read:

"The meeting must not take place unless -

(a) when he made the statement under paragraph 6 the employee has informed the employer what the basis for the grievance was..."

(iv) Had paragraph 7(2) been intended to govern a vitally important additional step in its own right, it is odd that, in sharp contrast to paragraph 6, no procedure is laid down for "informing" the employer or recording the relevant message. Where ex hypothesi significant details are in issue, could Parliament really have intended a casual telephone call or verbal aside to suffice?

(v) As Pill LJ suggested in Suffolk at para. 57(j), there may be little substance in the supposed distinction drawn between the "setting out" of a grievance under paragraph 6 and its "basis" under paragraph 7. A grievance without a basis is hardly a grievance at all, and it is arguably of some significance that regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, which introduced a "collective bargaining" equivalent to both paragraphs 6 and 7 in combination, refers only to "setting out the grievance" in writing and makes no mention of "basis" at all.

(vi) In this context, the fear of a "technical trap" for claimants which seems to underlie the Court of Appeal's policy decision in Suffolk may arguably have been exaggerated. An employee who gets things wrong at the grievance stage always has the option of submitting a fresh grievance in advance of any Tribunal claim. More importantly, perhaps, it seems unlikely that, without express provision, Parliament meant to require a Tribunal claim to be identical, in every particular, to the grievance as previously identified under paragraph 6 or paragraph 7. Such a rigid prescription would indeed be liable to lead to undue technicality and potential unfairness. An interesting parallel here might be the ability of civil courts to deal, on a broad pragmatic basis, with the problem of late amendments to a claim after the expiry of a statutory time limit. Development or expansion of an existing case will in general be permitted, and it is only some radical change of front which will fall to be excluded. In my judgment the "correlation principle" might reasonably be operated along similar lines, especially where, having made provision for amendment of claims before the Tribunal, Parliament must also have envisaged some development of their content at the pre-Tribunal stage.

[50] Having said all that, it is of course impossible to turn back the clock. In the context of employment law, courts and tribunals are deemed to exercise a UK-wide statutory jurisdiction, and the decision to sanction the submission of bare "equal pay" grievances was taken in Suffolk more than two years ago. As your Ladyship points out, the Supreme Court subsequently refused the employers leave to appeal, and the decision has since then been followed by the EAT south of the border: Sefton; Beddoes & Others v Birmingham City Council (EAT, 9 May 2011, at para. 76). By contrast, this court in Cannop expressly declined to address what was there perceived to be a hypothetical point which did not directly arise. In all the circumstances I am content to endorse your Ladyship's observation at paragraph [35] to the effect that:

"... this court should in our view follow the guidance given by the Court of Appeal in Suffolk unless there are compelling reasons suggesting otherwise".

[51] Whatever merit there may be in the points listed at paragraph [49] above, they are not in my judgment sufficiently compelling to justify this court, in appeals where bare "equal pay" grievances are not actually in issue, reaching a conclusion on Question 1 which conflicts with that of the Court of Appeal in Suffolk. By contradicting established appellate guidance, such a course might detrimentally affect the operation of the statutory regime across the UK, and there is perhaps also merit in preserving a measure of certainty and stability in a field where (as here) the provisions in question have already been repealed.

[52] A practical reason which may be thought to favour reaffirmation of the Court of Appeal's decision in Suffolk is that it is "the grievance" as detailed under paragraph 7(2) of the Schedule which will generally be the subject of discussion at any meeting or meetings with the employer. If bona fide negotiations on that basis were to be followed by an ET1 claim specifying essentially the same detailed complaint, it would be absurd for jurisdiction to be imperilled by an absence of relevant detail at the initial statement stage. This tends to suggest that, for the purposes of the "correlation principle", the relevant grievance may fall to be judged as at the stage of negotiations, rather than by reference to any initial written statement. It is, after all, "the grievance" (i.e. the same grievance) to which both paragraphs 6 and 7 of the Schedule appear to refer, even though (contrary to the contentions illustrated at paragraph [49] above) the "basis" required under paragraph 7 may differ from the "setting out" under paragraph 6.

[53] For all of these reasons, I am persuaded that it would be wrong for this court to reach a decision on Question 1 which directly conflicts with that of the Court of Appeal in Suffolk.

Question 2

[54] Insofar as the present appeals originate from bare "equal pay" statements of grievance, I am similarly persuaded that this court ought to follow the guidance of the Court of Appeal in Suffolk. If it is right to endorse bare "equal pay" grievances in the first place, and if initial written statements are to be taken as the sole point of comparison for the purposes of the "correlation principle", then there is obviously no way of judging whether the omitted details are consistent or inconsistent with any subsequent ET1 claim. But not all of these appeals originate from bare "equal pay" statements of grievance. On the contrary, it was a matter of agreement before the respective Employment Tribunals that

"...(1) all of the claimants had submitted grievances which stated they were claiming equal pay. (2) In certain grievances that was all that was said and no comparators were named. (3) In certain grievances, comparators were named and in certain cases the comparators mentioned in the subsequent claim form were materially different from the comparators named in the grievance".

So while the guidance in Suffolk may be thought to cover the cases mentioned in paragraph (2) of the above agreement, the same cannot in my view be said of the remaining cases falling within paragraph (3). The discussion which follows relates only to cases in the latter category.

[55] The issue here is whether the naming of comparators in an initial statement of grievance, so as to reveal something of its underlying nature, restricts the claimant's choice of comparators before the Tribunal. The court in Cannop did not expressly rule on this issue, although remitting back to the Employment Tribunal for the "correlation principle" to be applied. The issue did not arise in Suffolk, where initial grievances contained no details of comparators at all. It is therefore open to this court to decide the point in the absence of any binding or persuasive appellate authority. Founding strongly on the "correlation principle", and in line with the approach taken by Underhill P in Brett & Others v Hampshire County Council UKEAT/0500/08, Lady Smith in the EAT has concluded that a material change of comparators as between grievance and ET1 may reflect a material difference between grievance and subsequent claim. On that basis, she has sought to follow Cannop in remitting all of the present cases back to the Employment Tribunal for the "correlation principle" to be applied. The question in these appeals is whether she was correct to do so.

[56] Unlike your Ladyship, I do not believe that the guidance quoted at paragraph 41 from the Suffolk case is of assistance in resolving the "paragraph (3)" appeals. The Court of Appeal were not addressing the issue of materially different comparators as between grievance and ET1, and the guidance quoted must therefore be understood as relating to other matters. It may well be that the "correlation principle" should not be applied too rigidly, especially if a bare "equal pay" statement of grievance is deemed sufficient to comply with the statutory requirement in paragraph 6. But in my view that does not mean that a radical change of comparators as between grievance and ET1 can, in law, have no effect. Depending on the circumstances, it seems to me that a material change of comparators may result in the initial grievance being essentially superseded, and thus in pre-Tribunal negotiations being rendered worthless. The employer may, to his prejudice, be deprived of a valuable statutory opportunity to avoid the trouble and expense of Tribunal proceedings. As it seems to me, therefore, an employment tribunal must be entitled to hold, as a matter of degree, that an initial grievance and a subsequent claim are so different that no meaningful compliance with the statutory procedure has been achieved.

[57] That, in my judgment, was the thinking which prompted this court in Cannop to remit such an issue to the Employment Tribunal for determination, and in the same way I consider that the EAT's remit insofar as relating to the "paragraph (3)" appeals should be affirmed here. The "correlation principle" has been repeatedly affirmed by courts and tribunals over the years, and although Pill LJ may have appeared to play down its importance in Suffolk where only bare "equal pay" statements of grievance were in issue, I can see no justification for discarding it altogether. Even acknowledging (contrary to certain views expressed by Lady Smith in the EAT) that the mere addition, substitution or subtraction of comparators may not, on its own, be of critical significance, it seems obvious that overall differences may be so great as to divorce grievance from claim and thus invalidate the statutory pre-Tribunal procedure. To my mind, it is not for this court to carry out any necessary comparative exercise in that regard, not least because we do not have before us any evidence which would permit such an exercise to be attempted. The relevant statutory jurisdiction is conferred on the Employment Tribunal under section 32 of the Act, and it is therefore appropriate, in my view, for that Tribunal now to reconsider the "paragraph (3)" cases.

[58] The point to be determined in a given case is whether, on a broad pragmatic basis, the relevant ET1 claim is so different from the grievance previously submitted for negotiation purposes that it must be regarded as an essentially new and distinct initiative superseding the pre-Tribunal procedure. For that purpose, the identity of comparators would be only one factor to be taken into account and weighed in the balance. Significant issues may also arise, for example, as to the periods to which grievances and claims are said to relate, or as to the facts and circumstances on which grievances or claims depend. As was conceded by counsel at the hearing before us, material differences in these areas, as between initial grievances and later claims, have to be at least capable of precluding the necessary correlation.

[59] With regret, therefore, I am compelled to differ from your Ladyship as to the proper disposal of certain aspects of these appeals. In my view the EAT's remit to the Employment Tribunal should be affirmed in all those cases in which it is agreed that "materially different" comparators were specified at the ET1 stage. Over and above that, in my view, the remit should include any other case where comparators were initially named and where the employers invited the Tribunal to hold that the "correlation principle" had not been satisfied. Any broader remit would, I think, be inappropriate by reason of section 32(6) of the 2002 Act, which provides inter alia as follows:

"An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2) to (4), but only if -

(a) the breach is apparent to the tribunal from the information supplied ..., or

(b) the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with (the employment tribunal procedure regulations)."

As it seems to me, disposal of the present appeals along such lines would be consistent with the intention of this court in Cannop, to the effect that the "correlation principle" should apply as between grievances and ET1 claims. This was evidently the basis of the remit ordered in that case, and there is in my view no inconsistency between that disposal and the court's unwillingness to address the very different issue which, in the present appeals, is focused in Question 1.

Question 3

[60] Your Ladyship takes the view that there is sufficient in Suffolk to guide courts and tribunals on the particular issue of the naming of materially different comparators in equal pay grievances and forms ET1. However, as previously indicated, I do not believe that the Court of Appeal in Suffolk were directly addressing that question, and in any event the observations of Pill LJ at paras 61-62 would appear to affirm the "correlation principle" in all contexts except perhaps equal pay. With the greatest of respect, I am unable to share your Ladyship's views on this issue, or indeed the ambivalent attitude to the "correlation principle" which may seem to be reflected in Suffolk. Like the court in Cannop, I consider that the "correlation principle" still has a part to play in an equal pay context, albeit that it must not operate too strictly, and it is for that reason that I am, for my part, in favour of a remit back to the Employment Tribunal in at least some of the cases.

[61] My impression is, moreover, that notwithstanding the repeal of the relevant statutory provisions there are other employment disputes which may be affected by the decision of the court in these proceedings. From that perspective also I would oppose any construction of the statutory scheme which effectively deprived the "correlation principle", and the pre-Tribunal procedure, of practical content.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Emslie Lord Osborne	[2012] CSIH 11 XA15/11 and XA16/11 OPINION OF LORD OSBORNE in appeal under section 37(1) of the Employment Tribunals Act 1996 by VICTORIA AMERY and others, C BREEN and others Claimants and Appellants; against PERTH & KINROSS COUNCIL and DUNDEE CITY COUNCIL Respondents; _______

Claimants and First Appellants (Unison and Unite claimants): Summers QC; Thompsons, Solicitors

Claimants and Second Appellants (GMB claimants): Shead; Digby Brown

Respondents: Truscott QC; MacRoberts LLP

10 February 2012

[62] I have had the opportunity of considering the terms of the Opinion of your Ladyship in the chair and also the Opinion of Lord Emslie. I am in complete

agreement with the terms of the Opinion of your Ladyship and with the disposals suggested in that Opinion. There is nothing that I would wish to add.