United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms Kirti Jeram (of Counsel) Instructed by: City of Council Metropolitan District Council City Hall Bradford West Yorkshire BD1 1HY
For the Respondent	Mr Jason Galbraith-Marten (of Counsel) Instructed by: Messrs Whittles Solicitors Pearl Assurance House 23 Princess Street Albert Square Manchester M2 4ER


 


Summary

Practice and Procedure

Statutory dispute resolution procedures introduced by the Employment Act 2002 - modified grievance procedure – whether employee complied with requirement to set out in writing the basis for the grievance. Held, allowing the appeal, that the employee had not done so.


 


HIS HONOUR JUDGE RICHARDSON

1. This appeal concerns the modified grievance procedure introduced by section 30 and Schedule 2 of the Employment Act 2002. Where this procedure applies the employee must set out in writing not only the grievance itself but also "the basis for it": see Schedule 2, paragraph 9. If the employee does not do so he may be barred from presenting a complaint concerning the matter: see section 32(2). How much detail is the employee required to provide?
2. By its judgment dated 27 April 2006 the Employment Tribunal sitting in Leeds by Chairman alone held that Mrs Elaine Pratt had complied with the modified grievance procedure before presenting her equal pay claim to the Tribunal. Against that judgment her former employer, the City of Bradford Metropolitan Council ("the Council") appeals.

The statutory framework

3. Part 3 of the Employment Act 2002 introduced statutory dispute resolution procedures. Schedule 2 to the Act sets out the procedures. Two procedures relate to grievances on the part of employees. They are termed respectively the standard grievance procedure ("SGP") and the modified grievance procedure ("MGP").
4. The SGP and the MGP are set out in Part 2 of Schedule 2.

"Part 2 – 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 and notify him of the right to appeal against the decision if he is not satisfied with it.

Step 3: appeal

8.—(1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

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

(4) After the appeal meeting, the employer must inform the employee of his final decision."

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."

5. Key differences between the SGP and the MGP are the following. At stage one, the SGP only requires the employee to set out the grievance in writing, whereas the MGP requires the employee to set out in writing both the grievance and the basis for it. At stage two, the SGP makes provision for a meeting, before which the employee will have told the employer what was the basis for the grievance, whereas the MGP makes no provision for a meeting and envisages only a written response by the employer. Finally, the SGP makes provision for an appeal, whereas the MGP does not.
6. When is the MGP applicable? The answer is provided by the Employment Act 2002 (Dispute Resolution) Regulations 2004 ("the DRR") read with Schedules 3 and 4 to the Act. These Regulations are complex. It is sufficient for the purpose of this judgment to say that one or other procedure is applicable to a wide range of the complaints most commonly brought by employees. Of the two procedures, the one generally applicable is the SGP.
7. The MGP does not apply unless (i) the employee has ceased to be employed by the employer, (ii) the employer was unaware of the grievance when the employment ceased or the SGP had not been completed, and (iii) the parties have agreed in writing, in relation to the grievance, that the MGP should apply: see reg 6(3) of the DRR. The MGP therefore, which dispenses with a meeting and requires the employee to put the basis of the grievance in writing, only applies in restricted circumstances, and with the consent of the parties.
8. If an employee fails to complete step one of an applicable grievance procedure, the consequences are draconian. The employee may not present a complaint if it concerns a matter in relation to which the requirement applies. See section 32(2) of the Employment Act 2002, which provides -

"32 Complaints about grievances

(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. To complete the picture, it is necessary to mention also the dismissal and disciplinary procedures introduced by Schedule 2 Part 1 of the 2002 Act. These procedures apply where the employer is contemplating dismissal or disciplinary action. Again there is a standard and modified procedure. Under the standard procedure at step one an employer must set out in writing the employee's alleged conduct or characteristics or other circumstances which lead him to contemplate dismissal or disciplinary action. At step two the employer must, prior to a meeting, inform the employee "what the basis was" for including in the written statement the ground or grounds given in it. Under the modified procedure, which applies only where there was a dismissal for gross misconduct, the employer must set out in writing what the basis was for thinking that the employee was guilty of the gross misconduct.
10. Failure by an employer to complete step one, or any step, of a dismissal or disciplinary procedure has consequences. If the non-completion of an applicable procedure is wholly or mainly attributable to the employer, a subsequent related dismissal will be automatically unfair: see section 98A(1) of the Employment Rights Act 1996. In other circumstances an award may be uplifted: see section 31 of the Employment Act 2002.

The facts

11. Mrs Pratt was employed by the Council from June 1986 until March 2005. She was a cleaner at the Alhambra Theatre and at St Georges Hall.
12. On 15 July 2005 she wrote a letter to the Council. The appeal turns on this letter. It reads as follows:

"I have been subjected to unlawful sex discrimination in relation to my pay and conditions.

This is a written statement of grievance in compliance with statutory dispute resolution requirements. My grievance is that I believe I have been paid less than male employees of this authority for which work is broadly similar or of equal value. I believe I have been denied equal access to additional payments enjoyed by male colleagues.

Please note that I will exercise my right under section 10 Employment Relations Act 1999 to be accompanied to a grievance meeting by a representative from my union, the GMB."

13. It is apparent from this letter that Mrs Pratt and her advisors were expecting that a meeting would be convened. That would be the next step under the SGP. But on 26 August 2005 the Council wrote offering her a choice between the SGP and the MGP. On 9 September she replied, opting for the MGP.
14. On 25 October 2005 the Council wrote again to Mrs Pratt. They asked her questions about her own employment, about the posts she was using as her comparators for equal pay, and about what payments she felt she was denied, and why.
15. In November 2005 Mrs Pratt replied to the District Council. She said that the comparators were at the Alhambra Theatre. She said the comparator post was:-

"The post as a cleaner in which male colleagues work alongside doing the same tasks, e.g. mopping, toilet cleaning, hoovering, litter picking, washing walls/mirrors, carrying heavy black bags to disposable bins, moving furniture etc."

She said that female cleaners were paid a lower grade of pay for doing the same job. She felt that she should have been paid the same grade of pay as the colleagues she worked with. She said she did the same work as, but was paid less than, the "daymen" who worked alongside the female cleaners.

16. The Council replied to her grievance on 28 November 2005. The reply set out in detail the differences between her post as a cleaning assistant and the post of "Theatre Dayman". The Council did not accept that the role of cleaning assistant was of equal value to that of the Dayman.
17. On 6 December 2005 Mrs Pratt presented a claim to the Tribunal. The Claim Form stated:-

"I claim that the work I carry out is work rated as equivalent and/or of equal value to that of male employees of the Respondent, namely Mohammed Kapree and A Fryer and other employees of the Respondent employed as litter pickers.

We are all grade 1 manual workers but they receive bonus and I do not.

I make my claim under the Equal Pay Act 1970 (as amended) and/or article 141 of the EC Treaty and/or the Equal Pay Directive 75/1 77.

The Claimant claims damages for the shortfall she has suffered in terms of the remuneration paid for her work as compared to that of her comparators, in particular in respect of (1) bonus paid to the comparator group and/or (2) enhancements paid in respect of working unsocial and/or overtime hours and/or weekend enhancements (3) basic rate of pay.

Such sums to be backdated for at least 6 years together with interest thereon.

In respect of the bonus paid to her comparators, the claimant claims that the scheme should be applied in full to her as if she had been able to enjoy the benefits of the scheme throughout."

18. There is a stark difference between the claim as set out by Mrs Pratt to the Council in November, and the claim set out in the Claim Form. The first was a complaint about inequality with daymen who worked with her at the Alhambra Theatre. It was a complaint about rate of pay, for their grade was different. The second was a complaint about other employees of the Council, not theatre daymen, including litter pickers specifically, who were on the same grade. It was principally a claim relating to bonus.
19. The Council protested in its Response to the Tribunal that the substance of the claim differed from the substance of the earlier grievance, and submitted that the Tribunal had no jurisdiction to hear the claim.

A postscript to the facts

20. Those are the facts which are necessary for determining whether Mrs Pratt complied with step 1 of the MGP. But one other matter ought to be mentioned. When, on 26 August, the Council wrote to Mrs Pratt offering a choice between the SGP and the MGP, it set out what was required by each procedure. It mis-stated the requirement of the MGP. The letter said, as regards step 1:-

"you must set out your grievance in writing and send a copy to the Council. You have done this in your letter of 15 July 2005."

21. This letter omitted the requirement of the legislation that the employee should set out the basis for the grievance. The letter did not alert Mrs Pratt or her advisers to the full requirements of step one. It was not, however, suggested in the course of the hearing below, or on appeal, that this omission could disentitle the Council from taking the point that the letter dated 15 July did not comply with step one of the MGP.

The arguments before the Tribunal

22. The Tribunal held a pre-hearing review on 31 March to determine whether Mrs Pratt was entitled to bring proceedings. I must deal with the submissions made to the Tribunal in more detail than would usually be necessary, since it is argued by Mr Galbraith Marten for Mrs Pratt that the Council did not take the point before the Tribunal that the letter dated 15 July was insufficient to comply with step one.
23. It is important first to appreciate the argument put forward on behalf of Mrs Pratt. The argument was that the letter dated 15 July, rather than any later letter, was a sufficient compliance with step one of the MGP. By stating that it was a claim for equal pay, making comparison with other employees of the respondent and complaining of lack of equal access to additional payments enjoyed by male colleagues, the letter did all that was required in order to comply with step one of the MGP. It was submitted, by analogy with Shergold v Fieldway Medical Centre [2006] IRLR 76 and Canary Wharf Management Ltd v Edebi [2006] IRLR 416 that it was sufficient for the employer to know the general nature of the complaint being made.
24. Miss Jeram represented the Council at the pre hearing review. She went armed with written submissions. These submissions argued that the letter dated 15 July set out a grievance, that the additional information in November set out the basis of it, and that the complaint was in substance different to the basis set out in November. Inherent in the submission that the additional information in November set out the basis of the claim, is the position that the letter dated 15 July did not do so.
25. I am satisfied, accepting a submission by Miss Jeram who appeared for the Council, that she did argue that the letter dated 15 July did not set out the basis of the claim. Indeed the Chairman clearly regarded the question whether the letter dated 15 July set out the basis of the claim as a major issue which he had to decide: see paragraphs 8.3 and following of his reasons, to which I will turn shortly.
26. There would, perhaps, be an attractive rough justice in finding that the Council, having mis-stated the step one requirement in its letter dated 29 August, and failed to alert Mrs Pratt or her advisors to the issue, then did not argue at the pre hearing review that the letter failed to comply with step one, and could not raise the argument on appeal. Ultimately, however, for the reasons I have given, I am satisfied that the point was taken below and is open to the Council on appeal.

The Chairman's reasons

27. The Chairman's conclusions were expressed in the following paragraphs:

"8.4 The Chairman concluded that there was enough information in the letter to inform the Respondents that the Claimant had a complaint against them relating to an allegation under the Equal Pay Act 1970. It was in the view of the Chairman not appropriate to suggest that the modified procedure had not been complied with simply because a later (and nevertheless very sensible) request by the Respondent for further details relating to such a complaint resulted in different details than those in the eventual complaint.

8.5 In relation to the matter identified in Shergold that even in the standard procedure the grievance in question must relate to the subsequent claim and the claim must relate to the earlier grievance, the conclusion of the Chairman was that it did so in this case as it was a complaint under the Equal Pay Act 1970 against Respondent referring to male employees about an issue relating to pay. Consequently the modified procedure was complied with."

Submissions on appeal

28. On behalf of the Council Miss Jeram submitted that the letter dated 15 July was insufficient to comply with step one of the MGP, because it did not set out the basis for the grievance. She would concede that the letter sufficed for step one of the SGP, which only requires that the grievance be stated. But, she submitted, the statute plainly requires more when the MGP is applicable. The letter did not state to whom Mrs Pratt was comparing herself, or why the work was similar or of equal value. She referred me to the leading cases on the standard procedures: Shergold v Fieldway Medical Centre [2006] IRLR 76 at para 30 and Canary Wharf Management Centre v Edebi [2006] IRLR 416 at paragraphs 21, 41 and 47.
29. Miss Jeram would accept that the information which Mrs Pratt gave in November was sufficient to set out the basis of a grievance. But, she submitted, the basis of grievance set out in that information was in substance different to the complaint set out in the Claim Form. Therefore section 32(1) was not complied with.
30. On behalf of Mrs Pratt Mr Galbraith Marten sought to uphold the reasoning of the Tribunal Chairman. He submitted that whether a document contains sufficient information to amount to compliance with step one of the MGP is a question of fact, not of law: he relied on Alexander v Bridgen Enterprises Ltd [2006] IRLR 422 at paragraph 49. He submitted that it was sufficient that the letter contained an assertion that Mrs Pratt claimed equal pay because she was paid less by way of additional payments than male employees of the authority performing equal work. It was not necessary for the document to identify a comparator or give detailed reasoning as to the effects of an equality clause.
31. Mr Galbraith Marten illustrated his submissions by reference to the flexible powers of a Tribunal to permit the giving of detail or the amendment of a claim. A claim form is supposed to give details of the claim (see rule 1(4)(e) of the Employment Tribunal Rules of Procedure 2004), but it has been held impermissible for a Tribunal to reject a claim merely because particularity is not provided: see Grimmer v KLM Cityhopper UK [2005] IRLR 596. In that case, the words "details of the claim" were held not to require particularity, but only to require the statement of an alleged breach of an employment right falling within the jurisdiction of the Tribunal. The Appeal Tribunal (Judge Prophet) held that the rules should be interpreted so as not to deny a claimant access to the tribunal system. Mr Galbraith Marten submitted that, by analogy, a similar principle applies to the interpretation of the Employment Act 2002. Additionally, he pointed out that if an equal pay claim was made on an incorrect basis, the Tribunal would have power to amend it (for example to substitute a litter picker for a theatre dayman). Why should Mrs Pratt be barred altogether from the Tribunal over a matter such as that?
32. As an alternative to his main submission, Mr Galbraith Marten argued that, at the very least, there was sufficient in the letter dated 15 July to satisfy step 1 of the MGP in relation to an equal value claim.

Conclusions

33. The Tribunal's task is prescribed for it by the wording of section 32(2) of the 1980 Act. Had the employee presented a claim to the Tribunal under a jurisdiction to which section 32(2) applied? If so, did it concern a matter to which the requirement in paragraph 6 or 9 of Schedule 2 applied? If so, had the requirement been complied with?
34. The starting point for a Tribunal must be the claim form before it, together with any additional information which the claimant has provided. The Tribunal will first identify whether the claim is brought under a jurisdiction to which section 32(2) applies. The Tribunal will look at the claim form to identify what matter or matters it concerns. The Tribunal will then ask whether that is a matter to which the requirement in paragraph 6 or paragraph 9 of Schedule 2 applies.
35. In this case it was and is common ground that an equal pay claim is a such a matter and that paragraph 9 of Schedule 2 (step one of the MGP) was applicable.
36. The Tribunal will then ask whether the requirement has or has not been complied with. There are circumstances in which, by virtue of the DRR, there is deemed compliance. None of those applied here. Where none applies the Tribunal will look to see whether the employee has sent a written statement to the employer satisfying the requirements of the applicable procedure.
37. The provisions of the 2002 Act have the potential to introduce undue technicality and over-sophistication, resulting in problems for employer and employee alike: see Shergold v Fieldway Medical Centre [2006] IRLR 76 at para 27 per Burton P. They have the potential to operate harshly: see Canary Wharf Management v Edebi [2006] IRLR 416 at para 41 per Elias P. How are they to be construed if there is doubt as to their effect? In my judgment the first principle is that they should be construed to meet the purpose or objective of the statute, as in Canary Wharf Management (see para 25). But since they have the potential to limit access to remedies for important rights, not least across the whole range of discrimination law, they should not be construed any more widely than is necessary strictly to give effect to the intention of the statute.
38. The requirement of the SGP that the grievance should be set out in writing has been construed in Shergold and Canary Wharf Management. The statutory requirements are minimal: see Shergold at paragraph 30. The grievance must relate to the subsequent complaint, and vice versa: see Shergold at paragraph 35. In Canary Wharf Management Elias P summarised the position as follows:-

"It seems to me that the objective of the statute 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."

39. It is, however, plain that something more is required where the statutory requirement is to set out not only the complaint but also the basis for the complaint, as paragraph 9 requires in the case of the MGP. There is a contrast between the requirements of paragraphs 6 and 9 at step one.
40. Thus, in Canary Wharf Management Elias P said (paragraph 21) —

"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 no obligation to set out the basis of the claim. It is enough, therefore, that the employee identifies the complaint. The need to substantiate that with some evidence to justify it arises under the standard procedure at the second stage where the employee has to inform the employer what is the basis of the grievance."

41. In Alexander v Bridgen [2006] IRLR 422 the EAT had to consider the provisions of the standard DPP, which require an employer who contemplates dismissing an employee to inform the employee, as part of step two, "what the basis is" for the ground or grounds given by the employer in his step one written statement to the employee.
42. Elias P identified the purpose of the statutory procedures as being:-

"to seek to prevent the matter going to an Employment Tribunal if possible by providing the opportunity for differences to be resolved internally at an earlier stage"

He said:-

"It is at the second step that the employer must inform the employee of the basis for the ground or grounds given in the statement… The basis for the grounds are simply the matters which have led the employer to contemplate dismissing for the stated ground or grounds. In the classic case of alleged misconduct this will mean putting the case against the employee: the detailed evidence need not be provided for compliance with this procedure, but the employee must be given sufficient detail of the case against him to enable him properly to put his side of the story. The fundamental elements of fairness must be met."

Conformably with that general approach, it was held that an employer contemplating dismissal on the ground of redundancy should inform the employee of the basis of his selection for redundancy. If a matrix was used, the employee should be told the selection criteria and his own scores.

43. It will be recalled that key distinctions between the SGP and the MGP are that the latter (a) applies where an employee has ceased to be employed, and (b) does not require a meeting. The fundamental purpose of the two procedures remains the same; to seek to prevent a matter going to a Tribunal by providing an opportunity for differences to be resolved at an early stage. As part of the MGP the employee must set out the basis of his complaint in writing so that the employer may have an opportunity to respond to it, again in writing, with a view to justifying an apparent cause of complaint, or else proposing a remedy for it.
44. It follows that for the purposes of step one of the MGP an employee must set out in his statement not only the grievance he holds but the essential reasons why he holds his grievance, in sufficient detail to enable the employer to respond. The amount of detail the employee will be able to give is likely to depend on the nature of the grievance. There will be some grievances where the employee will know as much as or more than the employer, if for example the grievance relates to discriminatory harassment or bullying. Then the employee, who (it must be remembered) has opted for or at least agreed to the MGP, will be expected to set out his account in reasonable detail, not necessarily mentioning every detail but certainly informing the employer of the important matters which the employer should investigate and consider. There will be other grievances where, in the nature of things, an employee may not have full access to the facts, but has formed a grievance based on a suspicion or set of suspicions that certain facts exist. Then it will suffice that the written statement identifies not only his grievance but, in reasonable detail, why he holds the suspicions he does. Detailed evidence (in the sense of the prepared statements which would be appropriate for a Tribunal hearing) is not required.
45. It is true, as Mr Galbraith Martin pointed out, that this approach to the legislation means that a written grievance may fail for non compliance with paragraph 9 even though, if the same information were in the claim form, it might be accepted subject to an order for additional information or amendment. This seems to me to follow from the statutory scheme. It should, however, be borne in mind that use of the MGP cannot be forced on an employee; he or she must agree to it in writing.
46. A Tribunal, considering whether the requirements of paragraph 9 have been met, will not of course necessarily expect the original basis of grievance to be as detailed as the subsequent claim form. For example, the employer's response may itself provide further material for the claim, or lead the employee to find it. But the Tribunal will, as with paragraph 6, have to consider whether the subsequent claim is sufficiently related to the grievance, and vice versa.
47. It remains to apply these principles to Mrs Pratt's case.
48. The starting point is the claim form. What matter or matters does it concern? It is a claim that her work is "work rated as equivalent and/or of equal value" to that of other employees, some of whom are named and who work as litter pickers, who are grade 1 manual workers. The principal claim appears to relate to bonus, but there is also reference to enhancements for unsocial and/or overtime hours, and basic pay. It is common ground that the MGP applies to this complaint.
49. It is then necessary to examine the letter dated 15 July to see whether it sets out this grievance and gives the basis for it. In my judgment the letter sufficiently sets out the grievance, expressing a belief that Mrs Pratt has been paid less than male employees of the authority whose work is broadly similar or of equal value, and in particular that she has been denied access to payments enjoyed by male colleagues. This letter would have complied with step one of the SGP.
50. However in my judgment this letter does not sufficiently set out the basis for the grievance. There is no indication of the type of male colleague in respect of whom the grievance is said to apply. There is no indication of the type of additional payment in respect of which the claim is made. There is no indication of the type of work in comparison with which equal value is claimed. It would be quite impossible for the Council to respond usefully to this letter except (as it did) by asking for further information as to the basis of the complaint being made.
51. Mrs Pratt's reply in November to the Council's request for further information did set out the basis for a grievance. She identified the type of employee concerned, and her complaint that she was doing the same work as them while being paid less. The Council was able to, and did, provide a reasoned answer to that basis of complaint. It matters not that Mrs Pratt did not identify a comparator by name, or set out precise details of grading or pay.
52. However, the claim form subsequently issued does not relate to the basis of grievance put forward by Mrs Pratt in November. It is a different grievance altogether. Mrs Pratt's representatives below and on appeal have been quite right not to argue that the November reply complied with step one of the MGP in relation to the claim actually made.
53. Up to a point, the question whether step one of a grievance procedure has been complied with is a question of fact for the Tribunal. But the Tribunal must apply the correct test and reach a conclusion which can reasonably be adopted in the light of that test. The Chairman, to my mind, did not sufficiently distinguish between the requirements of the SGP and the MGP and did not have the correct test, which I have sought to identify, in mind.
54. For these reasons the appeal must be allowed. The requirements of paragraph 9 of Schedule 2 had not been complied with. The Tribunal may not consider the complaint.
55. I reach this conclusion with no great satisfaction, for I share the views expressed in both Shergold and Canary Wharf Management as to the potential for the Employment Act 2002 to operate technically and harshly. Speaking for myself, I question whether there is a need for a legal provision which bars access to the Tribunal altogether if an applicable statutory grievance procedure is not followed by the employee. It is arguable that broadly the same practical result could be achieved by placing upon Tribunals a duty to stay proceedings while statutory procedures are undertaken.