United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS I NOONS (Solicitor) Instructed by: Messrs DLA Piper UK LLP Victoria Square House Victoria Square Birmingham B2 4DL
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


SUMMARY

Practice and Procedure – New evidence on appeal

Practice and Procedure – 2002 Act and pre-action requirements

The Appellant wished to adduce new evidence (which would have been available below) to contradict a statement in the ET1 which had not been controverted in the ET3 and despite having been given (but not taken) the opportunities of an adjournment to adduce evidence by the ET. Refused.

ET construed the Respondent's letter in its context as sufficiently raising a grievance. Entitled to do so. No error of law.


 


HIS HONOUR JUDGE REID QC

1. The first point on this appeal, which is an appeal against a decision of a Chairman, Mr Sara, sitting alone on 14 March of this year, is whether the Respondent below, Appellant here, which I shall call Serco, should be allowed to adduce additional evidence. The hearing before the Chairman was a pre-hearing review and case management discussion essentially to determine whether the Claimant, Mrs Wild, had raised a grievance within the first schedule of the Employment Act 2002 by a letter dated 7 June 2005, and accordingly was not prevented from presenting a claim by section 32 of the Act.
2. The notes of the hearing reveal that at an early stage in the hearing the Chairman explained that he would consider whether or not the letter of 7 June amounted to a grievance for the purpose of the statutory scheme and that, if it was felt by either party that is was necessary to hear evidence about this issue, then the hearing would be adjourned to allow for that. At that stage the representative of Serco did not feel that it was necessary to seek to adduce any evidence and did not ask for an adjournment. The position at that time, so far as the case that was being put and the answer to it was concerned, was that Mrs Wild, in her ET1, had said this:

"May 2004. I discovered that all members of my team were earning in excess of £30,000 per annum, spoke to PB [that is Pat Barratt, Personnel Officer] about my concerns that I was not being paid on equal basis to men in similar roles, and was told that that was the way it was at Serco and that I should accept it. I replied that this was against the law."

3. That assertion was not controverted in Serco's ET3. The Chairman held in the conclusion of his decision that the letter of 7 June, to which I have referred, construed in context, which included the discussion in May 2004, was a sufficient grievance for the purposes of the statutory scheme. What is said is that Serco did not at that stage appreciate that the Chairman would construe the letter of 7 June in the context of the surrounding circumstances and that, having realised, belatedly, that he was going to do so, they ought, at the appeal stage, to be allowed to adduce evidence, not from Pat Barratt, but from somebody else, in effect to seek to controvert the hitherto uncontradicted assertion by Mrs Wild in his ET1 as to the conversation in May 2004.
4. In my judgment that further evidence is not admissible. It is trite law, and has been for many years, that documents have to be construed in their context. The issue as to whether or not the conversation had taken place was, on the face of the pleadings, uncontroverted. Serco were specifically given the opportunity to have an adjournment to adduce evidence if they thought it was necessary. They did not think it was necessary. The evidence, had they wished to adduce it, would clearly have been available at the time. They cannot now, simply because they have lost before the Chairman, seek to have a second bite of the cherry, rerunning the case on different facts. In my judgment the application to adduce further evidence is absolutely hopeless and is refused.
5. Turning then to the substantive appeal, Serco, asserts that the letter of 7 June cannot properly be read as raising a grievance relating to pay on the grounds of sex. The letter itself, which is at pages 47 and 48 of the bundle, contains the following paragraph at the head of the second page of the letter:

"There has been an apparent reluctance to pay me fairly and to conduct appraisals and reviews on an agreed schedule. My contract of employment specifies I should have an annual appraisal on the anniversary of the date I commenced employment with Serco, i.e. 9 October. I was asked to take on my current role, Team Leader/Senior Data Management Engineer, in December 2003. An appraisal/salary review of my new role was not carried out until July 2004, I was offered an additional 5% on my salary at that time. This put me some £4,000 per annum below the pay of my team members of that time. Eventually I was able to negotiate an increase to approximately £200 per annum more than my then team members. My request for my salary increase to be back-dated to the time I took on the new role was refused. My annual appraisal due under the terms of my contract of employment in October 2004, did not take place. In July 2004 RB proposed a review in December 2004; this has never taken place. A Serco Justice Recruitment Specification produced in May 2004 for the position of Team Leader - Outsource Management carried a salary of £4,000 - £9,000 in excess of my current salary (13% - 29% more).

Serco is "committed to helping people reach their full potential". As part of my appraisal in July 2004 training was identified and agreed which would assist me in performing my job effectively. This has not been arranged despite repeated requests."

That letter had to be read in the context of the ET1, which contained the passage I have already read:

"May 2004. I discovered that all members of my team were earning in excess of £30,000 per annum, spoke to PB about my concerns that I was not being paid on equal basis to men in similar roles, and was told that that was the way it was at Serco and that I should accept it. I replied that this was against the law."

6. The Chairman, in dealing with this, said at paragraph 4 of the decision, having read the passage from the letter to which I have just referred

"This is clearly a grievance about pay rates. It refers to the comparison with other team leaders but it makes to reference to gender difference and the Respondent points out it refers to a job specification, which itself is gender neutral, rather than to an actual comparator in post."

He then goes on, having referred to the reply and to the authority to which he had been referred, at paragraph 7:

"It seems to me the bulk of the factual basis of the claim is set out in the grievance. However, it omits the crucial allegation that the comparator or comparators are men. I consider, on balance, that there is enough in this document to alert the Respondents to the matter which aggrieves the Claimant. It can have come of no surprise to them that this grievance about pay, set out specifically as a grievance about her treatment in relation to a comparator, should be formulated as an equal pay claim under the Equal Pay Act 1970, even though the Claimant did not expressly refer to this."

7. It is said that that was not a conclusion to which he could properly come and, in support of that submission, I was referred to three authorities: Shergold v Fieldway Medical Centre [2006] IRLR 76, Canary Wharf Management Limited v Mr T Edebi [2006] IRLR 416 and Villalba v Merril Lynch & Co Inc and others [2006] IRLR 437. In particular in Shergold at paragraph 28 this Tribunal, in a decision delivered by the then President, Burton J, said this:

"So far as the employee is concerned, the statutory wording is, so far as paragraph 6.2 of Schedule 2, Part II of the Act is concerned, very simple, and we believe it was intended to be simple. Of course an employee, before the statutory procedure is invoked, must set out something in writing, because otherwise the employers will not necessarily appreciate there is a grievance to deal with, but they are not required to set out in technical detail, certainly, so far as the standard procedure is concerned. The danger is obvious that the kind of pernickety criticism of the form or content of the 'writing' exemplified here can result in an employee being barred from the judgment seat entirely, as occurred here. It is, of course, equally important from the point of view of the employer that an employer should know where it stands, and it is as well for employers to appreciate there is no requirement for excessive technicality in relation to the form in which a grievance is set out in writing, so that they can easily appreciate where they must fulfil their obligations under the 2002 Act and the 2004 Regulations;

otherwise they might find themselves down the slippery slope leading to an automatically unfair dismissal. It is not, in our judgment, the intention of the legislation either that employees should be barred or that employers should unwittingly find themselves liable for automatic unfair dismissal. Those sanctions which should be very rarely used; the purchase of the legislation is quite other, as we have described."

Then at paragraph 35 the Tribunal said:

"We agree with the submission of the Respondent that the grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance, if the relevant statutory provision is to be complied with."

And at paragraph 36:

"But that does begin to mean that the wording of the simple grievance in writing required under paragraph 6, and the likely much fuller exposition of the case set out in proceedings, must be anywhere near identical; not least, as we have described, because, at any rate where the standard procedure is concerned, the basis of the grievance does not have to be set out in the first instance."

8. The next case I was referred to was Canary Wharf. A decision of the current President, Elias J, who said at paragraph 21:

"Third, the content [this is in the context of looking at the requirements under paragraph 6]. The contrast between the standard and the modified procedure highlights an important feature of the way in which the complaint must be made under the former. As we have noted, there is obligation set out at the basis of the claim. It is enough therefore the employee identifies the complaint. The need to substantiate that with some evidence to justify it arises under standard procedure at the second stage, where the employee has to inform the employer what is the basis of the grievance. The only requirement that section 32(2) makes plain is the complaint to the employer must be essentially the same complaint as that that is subsequently advanced before the Tribunal."

He then refers back to the Judgment in Shergold, which I have just cited. and at paragraph 24 he went on:

"Suffice it to say we agree with Burton J in identifying whether or not the complaint is identical to that which has been lodged before the tribunals, one must not approach the issue in a technical way. The law in this area is directed at employees who in many cases – perhaps most – will have no knowledge at all of the relevant law. The aim is to promote the use of appropriate procedures. It would be quite wrong to require the grievance to be made in any unduly legalistic or technical manner."

At paragraph 25 he said:

"It seems to me that the objective of the statue can be fairly met if the employers, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being raised."

The remaining passage to which I was referred in this Judgment was at paragraph 31, which concludes in these terms:

"If the statement cannot in context be fairly read even in a non-technical and unsophisticated way as raising the grievances which is the subject-matter of the tribunal complaint, then the tribunal cannot hear the claim. There is no overriding interest of justice which can be invoked to save it."

9. I was also referred to the decision in Villalba, in particular to paragraphs 124 and 135, and the point was made that the legislation was concerned not with fair pay, but with unfair pay on the ground of sex. At paragraph 124 it was said by Elias P, giving the Judgment to the Tribunal:

"What is striking about this whole jurisprudence is that prior to any uncertainties that may have been created by Brunnhofer no one has ever thought that the mere fact that a woman is paid less than a man for work of equal value is enough to trigger the obligation objectively to justify the difference in pay. If it were enough then the legislation would be concerned with fairness rather than with sex discrimination. All the case law is premised on the basis that whilst that basic comparison is enough to raise a prima facie case of direct sex discrimination which the employer will have to rebut, if the claim is one indirect discrimination then the claimant will have to establish a prima facie case."

Then at paragraph 135 he said:

"First, as the House of Lords pointed out, both in the Strathclyde and Marshall cases, if the contention of the appellant is right, and objective justification needs to be established in every case where a woman can raise a presumption of equal value with her chosen comparator, then the effect is to convert a law which is designed to eliminate discrimination on grounds of sex into fair wages legislation. An irrational system of pay may be unfair, but it is obviously not automatically discriminatory on sex grounds, such as – to take a wholly extreme example – if pay is determined by a toss of a coin."

10. So far as this case is concerned, of course, the decision of the Chairman was a decision as to whether or not the case should go to a full hearing, i.e. whether Mrs Wild had managed to fulfil the statutory criteria by raising a grievance, and it is at that stage that any question of the fairness of the rate at which she was paid and the reason for any differential will be investigated. But for present purposes all I am concerned with are the matters that I have referred to earlier, as dealt with in Shergold and Canary Wharf, and what I have to look to see is whether it can be said that the Chairman erred in saying that the letter, in its context, raised the appropriate grievance.
11. In my judgment there was no error on the part of the Chairman. This was a case in which, on the material before him, the complaint had been made that she was being paid less than the men and, it was asserted and not contradicted, that she was told that was the way it was at Serco and she should accept it.

12 The letter falls to be construed against that background, and the Chairman was, in my judgment, entirely justified in saying, as he did, that it can have come of no surprise to Serco that this grievance about pay, set out specifically as a grievance about her treatment in relation to a comparator, should be formulated as an equal pay claim under the Equal Pay Act, even though the Claimant did not expressly refer to this. The authorities show the letter of grievance does not have to be in any technical terms. In the context the Chairman was entitled to hold as he did that the grievance letter was sufficient, and in those circumstances the appeal must be dismissed.