United Kingdom Employment Appeal Tribunal

APPEARANCES

 

UKEAT/0332/08/RN
For the Appellants Suffolk Mental Health Partnership NHS Trust	MS NAOMI ELLENBOGEN (of Counsel) Instructed by: Messrs Kennedys Solicitors 25 Fenchurch Avenue LONDON EC3M 5AD
For the Respondents 1) Mrs L Hurst 2) Ms M Thompson 3) Ms J Taylor	MR PAUL EPSTEIN (One of Her Majesty's Counsel) and MS BETSAN CRIDDLE (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street LONDON WC1B 3LW
UKEAT/0365/08/RN
For the Appellants Mid Staffordshire NHS Foundation Trust	MS NAOMI ELLENBOGEN (of Counsel) Instructed by: Mid Staffordshire NHS Foundation Trust Legal Services Staffordshire General Hospital STAFFORD ST16 3SA
For the Respondents Mrs R Kaur and Others	MR PAUL EPSTEIN (One of Her Majesty's Counsel) and MS BETSAN CRIDDLE (of Counsel) Instructed by: Messrs Thompsons Solicitors City Gate East Tollhouse Hill NOTTINGHAM NG1 5FS
APPEARANCES	APPEARANCES
UKEAT/0366/08/RN
For the Appellants Ms C A Arnold and Others	MS BETSAN CRIDDLE (of Counsel) Instructed by: Messrs Thompsons Solicitors The McLaren Building 35 Dale End BIRMINGHAM B4 7LF
For the Respondents Sandwell Metropolitan Borough Council	MR JEREMY LEWIS (of Counsel) Instructed by: Messrs Wragge & Co LLP Solicitors 55 Colmore Row BIRMINGHAM B3 2AS

SUMMARY

JURISDICTIONAL POINTS: 2002 Act and pre-action requirements

These appeals raise the issue what detail needs to be provided in an equal pay case when an employee raises a written grievance as required by the first step in the statutory standard grievance procedure set out in paragraph 6 of Schedule 2 to the Employment Act 2002. The EAT held that the information can be minimal and need state no more than that the claim is a claim under the Equal Pay Act (which was all the information in fact given in the Sandwell case.)

Observations on the proper approach to the construction of paragraph 6.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. These appeals involve three cases which the EAT has ordered should be heard together. I will refer to the cases as 'Suffolk', 'Mid-Staffordshire', and 'Sandwell' respectively. In each of them the claimants allege that the employer has been in breach of the Equal Pay Act 1970. The appeals raise yet again the issue of the statutory grievance procedures and whether the Tribunal properly had jurisdiction to hear various equal pay claims made by the claimants in each of these cases. The Mid Staffordshire appeal also raises a connected procedural issue which I deal with separately.
2. The parties were encouraged to rationalise representation, and they have done so. Mr Paul Epstein QC and Ms Betsan Criddle act together for the claimants in the Suffolk and Mid Staffordshire cases; Ms Criddle alone appears for the claimants in the Sandwell case. Mr Jeremy Lewis acts on behalf of Sandwell MBC, and Ms Ellenbogen acts on behalf of both Suffolk and Mid-Staffordshire. I am very grateful to them all for their helpful submissions.

The relevant law.

3. Before setting out the detail of these cases, I shall set out the relevant law. Section 32 of the Employment Act 2002 provides that a Tribunal will not generally have jurisdiction to hear certain claims unless there has been a statement of grievance raised with the employer with respect to that claim and at least twenty eight days have elapsed to provide an opportunity for the issue to be resolved. The claim then lodged with the Tribunal must in essence be the same as the complaint raised in the grievance.
4. The material provisions of section 32 are as follows:

"(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.

(3) 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 has been complied with, and

(b) less than 28 days have passed since the day on which the requirement was complied with."

Subsection 6 then provides that the Tribunal does not have to take the issue of its own motion; the issue must either be raised by the employer or be clear from information supplied by the employee:

(6) 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 to it by the employee in connection with the bringing of the proceedings, 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 regulations under section 7 of the Employment Tribunals Act 1996 (c 17) (employment tribunal procedure regulations)."

The jurisdictions regulated by this section include claims made under the Equal Pay Act.

5. The reference to the "requirements in paragraphs 6 and 9" are references to the first stage in the relevant grievance procedures. There are two distinct grievance procedures, what is termed the "standard" grievance procedure and the "modified" procedure. The latter is very exceptional and is not directly relevant to these appeals. Paragraph 6 of Schedule 2 to the 2002 Act sets out step 1 in the standard grievance procedure which, as a consequence of section 32(2), must be complied with before a complaint is presented to an employment tribunal if the Tribunal is to exercise jurisdiction. Paragraph 6 provides that:

"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".

6. Paragraphs 7 and 8 then set out the subsequent steps involved in the procedure. Paragraph 7 requires the employer to invite the employee to a meeting to discuss the grievance, but that meeting must not take place until the employee has informed the employer what the basis of the grievance was when he made the statement. The employer must have a reasonable opportunity of considering this information, and the employee must take all reasonable steps to attend the meeting. Paragraph 8 provides that the employee should have a right to appeal and stipulates in general terms the procedure which should apply.
7. The first step of the modified procedure is set out in paragraph 9. The principal difference between the requirement under this provision and under paragraph 6 is that in the former the written statement of grievance must identify both the grievance and the basis for it.
8. There is also a separate procedure which permits a collective grievance to be lodged by a trade union official on behalf of stipulated employees. This right to lodge a collective grievance is conferred by regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004. It also requires the grievance to be set out in writing. The procedure provides an alternative form of compliance with paragraph 6: see the explanation of this procedure in the EAT decision of Alitalia Airport Spa v Akrif and others [2008] ICR 813 per Elias P. paras 32-34. The steps which are found in paragraphs 7 and 8 of Schedule 2 to the Act do not apply where this collective procedure is invoked. No doubt the assumption is that the collective parties can be expected to take whatever steps they consider appropriate to resolve the grievance without any need for Parliament to formulate what those steps should be.
9. It is also to be noted that surprisingly the concept of "grievance" is defined not in the Act, but in those regulations. The definition is in the following terms (reg.2):

"a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him".

10. In addition to the rules affecting the jurisdiction of the Tribunal to hear claims, there are also important provisions which entitle a Tribunal to vary the amount of compensation that would otherwise be provided if the procedure is not complied with through the fault of either the employer or employee. Save in exceptional circumstances, the Tribunal must then either increase or decrease the compensation by between 10 per cent and 50 per cent, depending on who is at fault and the nature and gravity of the breach: sections 31(2) and (3) of the 2002 Act. Accordingly, even if an employee does satisfy the obligation to raise a written statutory grievance so that the Tribunal can hear his claim, there is nonetheless a real sanction which can potentially be imposed against him if he fails to comply with the relevant requirements of the grievance procedure thereafter.
11. Finally, it is necessary to draw attention to certain material provisions found in Schedule 6 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. These are the regulations which set out the procedural rules for employment tribunals. Schedule 6 sets out the rules of procedure applicable to equal value claims. They envisage what is termed a "stage one equal value" hearing at which the Tribunal will determine whether an independent expert should be appointed and consider if it should hear submissions on any genuine material factor defence. Whether it appoints an independent expert or not, it must, unless it considers it inappropriate to do so, make certain standard orders. These include, under paragraph 5(1)(a), the following:

"a tribunal shall, unless it considers it inappropriate to do so…order that:

(a) before the end of a period of 14 days after the date of the stage 1 equal value hearing the claimant shall:

(i) disclose in writing to the respondent the name of any comparator, or, if the claimant is not able to name the comparator he shall instead disclose such information as enables the comparator to be identified by the respondent…."

12. That paragraph plainly envisages that individual comparators may not have been named before the stage 1 Tribunal hearing.

Case Law.

13. The EAT has been inundated with appeals relating to the operation of the statutory grievance procedures. Rarely can legislation have been so counter-productive. Provisions designed to reduce tribunal disputes have spawned satellite litigation in which arcane and complex points of law have been argued, frequently so remote from reality that they would surprise even the most desiccated Chancery lawyer conjured up by the imagination of a Charles Dickens.
14. In these cases, for example, I have to consider whether an appropriate statement of grievance has been made in circumstances where these claims are only a small number in a much wider equal pay challenge being conducted in the health and local authority fields. There is a dispute as to whether these claims could ever in reality have been resolved locally - although the employers in Suffolk think that they could. Where it is agreed that they could not, the issue becomes whether a formal written grievance has been made in circumstances where raising it serves no useful practical function whatsoever and is done for no reason other than to satisfy the legal requirements. Yet the arguments are premised on the assumption that all claims can be resolved locally, and raise such issues as whether the grievance is sufficiently detailed to enable the employer to resolve it. (I should emphasise that these observations are not intended as a criticism of employers for taking these points; they are entitled to take the legal arguments open to them and indeed, given the sums of money at stake, may feel that they have a duty to their various stakeholders to do so.)
15. In a number of cases the EAT has sought to provide some guidance on what compliance with the standard grievance procedure requires: see in particular Galaxy Showers v Wilson [2006] IRLR 83, Shergold v Fieldway Medical Centre [2006] IRLR 76 and Canary Wharf Management Ltd v Edebi [2006] ICR 719. The Inner House of the Court of Session has also considered the relevant provisions in Cannop and others v Highland Council [2008] IRLR 635, which was an appeal from an important decision of Lady Smith, giving the judgment of the Scottish EAT in that case under the name Highland Council v TGWU and others [2008] IRLR 272.
16. The following principles are, in my judgment, clearly established from the authorities:

(i) The underlying purpose of the statutory grievance procedures is to seek to encourage conciliation and to avoid disputes having to be resolved by a tribunal (Shergold para 26; Highland Council (EAT) para 29). The provisions are to be construed having that purpose in mind.

(ii) In determining whether a statement amounts to a grievance or not, the appropriate test is the following (Highland Council para10):

"the grievance document requires to be in such terms that, on a fair reading of it, the employer can be expected to appreciate that a relevant complaint is being raised (Canary Wharf at paragraphs 24 and 25); he needs to be able to understand from the grievance document what is the general nature of the complaint that is being made (Shergold at paragraph 37)."

(iii) When construing the grievance -and this must apply both to the issue of whether a statement raises a grievance at all, as well as what complaint is identified by the grievance -the context is important. The point was put by the Lord President, Lord Hamilton, in the Cannop case as follows (para 29):

"Moreover, the grievance document need not necessarily be read in isolation. There may have been earlier communications with the employer which provide a context in which the grievance document falls to be interpreted (Canary Wharf, paragraph 36). Thus, as seems to have been the case for some of the union-backed claimants in the present proceedings, prior communications between the unions on behalf of their members and the respondents, even if they do not give rise to deemed compliance by virtue of reg. 9 or 10 of the 2004 Regulations, may constitute a relevant context in which the grievance documents are to be understood. Events subsequent to the communication of the grievance document (for example, the giving of the "basis" prior to the step 2 meeting and exchanges between the parties at that meeting) may illuminate the nature and scope of the grievance."

(I confess to having some difficulty with the notion that the construction of the grievance can be made in the light of subsequent communications, but nothing turns on that issue in this case.)

(iv) It is inappropriate to carry out an unduly technical or over sophisticated approach to construing a grievance (Shergold para 27; Edebi para.41, approved in Highland Council (CS) para 29).

(v) It is enough in relation to step 1 of the standard grievance procedure to identify "the complaint" (Edebi para 21). That is to be distinguished from the obligation (arising at step 2 of the standard grievance procedure but in step 1 of the modified procedure) to set out the "basis" of the complaint.

(vi) The statement of grievance must be a statement of essentially the same complaint as the employee is seeking to have determined in the Tribunal (Edebi paras 16, 21); Cannop (Court of Session, at para 29). In this context, however, it must be borne in mind that the grievance document and the claim form are designed to achieve different objectives and are addressed to a difference audience. In Cannop (CS para 29) the Lord President explained it thus:

"…We add only that in carrying out this exercise it should be recognised that the grievance document and the tribunal claim are designed to perform different functions and that their language can accordingly be expected commonly to be different. The correlation to be looked for is whether underlying the claim presented to the tribunal is essentially the same grievance as was earlier communicated"

(vii) In accordance with European law principles, the procedural requirements, looked at in context, should not be applied so as to render access to the Employment Tribunal impossible in practice or excessively difficult: Cannop (para 25). This question needs to be looked at broadly: Unison and another v Brennan [2008] IRLR 492 para.51.

17. The key issue in this case is what detail is necessary to identify "the complaint" and what can properly be considered as "the basis" of the complaint. A related issue is how to determine whether the correlation principle is satisfied, i.e. whether underlying the claim made to the tribunal is the same grievance as that raised with the employer.

The Tribunal decisions.

The Suffolk cases.

18. There are now three claimants involved in this appeal (a fourth, Ms Davis, has withdrawn her claim). In the case of Mrs Taylor, a grievance was lodged on her behalf by Unison on 21 October 2005. It purported to raise a grievance on behalf of two employees, and thus to be a collective grievance. In fact, however, one of the two persons was not an employee of Suffolk. However, the Tribunal found that the grievance had been resurrected by a letter sent by solicitors to the Trust dated 28 March 2007 and it is common ground that it is to be treated as an individual grievance.
19. In respect of Ms Hurst and Ms Thompson, there was a collective grievance lodged by Unison dated 21 November 2006. The grievance was in essentially the same terms as had been identified in the case of Mrs Taylor. The material part of Mrs Taylor's grievance provided as follows:

"This letter represents a grievance lodged by us as the recognised trade union on behalf of those members, your employees, who are entitled to back pay under the Equal Pay Act 1970…

...

Our members are doing work which has been rated as equivalent under the Agenda for Change job evaluation, or alternatively whose work is of equal value, to other of your employees and also other employees employed by other NHS employers ("the comparators"). The comparators are paid more than our members.

Our members work in groups who are predominantly female and/or the comparators work in groups that are predominantly male. As such they are entitled to equal pay with their comparators, unless you can prove that there is a valid objective reason for paying them less than their comparators. In our view there is no valid objective reason.

Our members are therefore entitled to back pay in respect of the difference in pay between them and their comparators, for up to 6 years."

20. In each case the claim form subsequently presented to the Tribunal identified the claims as being under the Equal Pay Act and Article 141 of the Treaty of Rome. With respect to the necessary comparators the claim was pleaded as follows:

"The comparators are men employed in jobs which are or were mainly done by men, which are now rated as equal or are rated lower than the current grade of the claimants but prior to Agenda for Change were paid more than the claimant (sic). The claimants are female who work in predominantly female groups.

...

The comparators will be named after disclosure of information or documents by the respondents."

21. The response from the employers in each case took the point that no grievance had been lodged, as required by section 32 of the 2002 Act.
22. The Tribunal, in a careful judgment, set out the facts and recounted the legal principles to be derived from the authorities. The employment judge found that there had been compliance with the requirements of paragraph 6 in this case. He reasoned that the ratio of the Highland Council case in the EAT was simply that the Tribunal was:

"required to satisfy itself that each complaint was essentially the same as that which be complained in the claimant's grievance document."

23. The employment judge concluded that that was so in this case. In doing so he made certain observations on the Highland judgment in the following terms:

"Turning back to the grievance in the present cases, it is clear that while not identifying comparators by name or job category it does identify (i) that the claimants are females in female dominated jobs; (ii) that they compared themselves with other employees of the respondent (and also employees employed by other NHS employees) who were predominantly male and who had been rated as equivalent under AfC; (iii) the comparator groups were predominantly male and in consequence the claimants were entitled to equal pay with the comparators unless there was a valid objective reason for paying them less; and (iv) that the claimants were entitled to consequential back pay for up to six years. Pratt also confirms the fundamental differences between the requirements of step one and step two of the SGP on the one hand, and the elided requirements of step one of the modified procedure on the other. …

The difficulty with Ms Ellenbogen's analysis is in defining where her requirement of the specification at the step one process of the SGP ends and the requirement of identifying the basis for the claim at step two of the SGP (the fleshing out process, as she describes it from Lady Smith's judgment at paragraph 31) begins. If there is any difference, it is very difficult to see how a Tribunal would identify exactly what is essential at step one and what else is merely required at step two. The point is clearly not clarified in paragraph 32 of Lady Smith's judgment which the Tribunal has identified as obiter. The "relevant complaint" is the complaint which subsequently forms the basis of the claim identified in the ET1. It is of course open to the employer, as occurred in the present case, to make enquiries of the claimant having received the grievance as to the basis of an equal pay claim and to refuse to deal with the grievance if comparators are not sufficiently identified such that it is impractical for the employer to deal with it. Clearly in those circumstances the employer would not be in breach of the procedure or liable for an uplift although the claimant might well be in breach and liable for a reduction under section 31 of the Employment Act. It is not made clear in paragraph 32 why, given that the employer is entitled to know the basis of the claim before the step two meeting, he is put at a disadvantage at the step one stage if no comparator's job category is identified and why the step two meeting cannot proceed."

24. The employment judge further supported his conclusion by noting that rule 5(1)(a) in schedule 6 of the Tribunal Procedure Regulations (set out above), which allows comparators to be identified after a stage 1 equal value hearing, would be entirely otiose if there were an obligation to identify the comparator at the grievance stage.

The Mid-Staffordshire cases.

25. This appeal raises certain additional issues. The employment judge held a telephone case management discussion at which a number of matters were discussed. In the course of that discussion the employers raised for the first time the question whether appropriate grievances had been lodged (although they had given notice in advance that this issue would be raised). They sought a preliminary hearing to determine that issue, not least because the lawyer dealing with the case management discussion did not feel in a position to argue the matter at that stage.
26. The Tribunal refused that request. The employment judge noted that the jurisdiction issue had not been pleaded in the response form. He held that it needed to be pleaded, considered whether to grant permission to amend the response to introduce this new defence, and then refused to do so.
27. The basis for the refusal was that it was inappropriate to allow an amendment because the responses had been put in some two years before, the case was well-advanced, and much of the work of preparing and agreeing job descriptions had been done. Looking at the balance of prejudice, the employment judge concluded that it was in favour of refusing the amendment. Even accepting - which was a matter of some uncertainty - that most claimants could lodge some claims in time (because their employment had not been terminated and under the Equal Pay Act they can lodge claims up to six months after it is terminated), they would be prejudiced because the period for which they could claim back pay might be shortened.
28. By contrast, the employment judge considered that there was little prospect that an application to strike out the claims would be successful, even if the matter had been raised in the original response.
29. The judge reached this conclusion whilst admitting that he had not seen the way in which the grievances had been raised. In fact it is common ground that they were in virtually the same terms as the grievances raised in the Suffolk cases. They were raised at various times, sometimes by the union and sometimes by solicitors, and some were collective and some individual, but it is agreed that nothing material turns on those features.
30. In the case of these claimants, however, whilst the statement of grievance was similar to that lodged in the other two cases, the claim form was not. It said this:

"They claim equal pay with comparators who have also had their jobs evaluated at the same rate under the Agenda for Change job evaluation study, or in the alternative, whose jobs are of equal value. The claimants work in predominantly female groups and/or the comparators work in predominantly male groups. The comparators earn or have earned considerably more than the claimants. The identity of the comparators will be identified following discovery."

The Sandwell case.

31. In this case the claimants' union, Unison, put in grievances at various stages between 10 May 2005 and 19 October 2006. They were in identical terms as follows:

"I write on behalf of the members detailed in the attached schedule who are employed as (various posts within the Council are here referred to) by Sandwell MBC in accordance with Section 32 Employment Act 2002 to raise a formal grievance under the Employment Act 2002 (Dispute Resolution) Regulations 2004.

These members have suffered a shortfall in terms of the remuneration that they have received for their work, compared to that of male comparators. Under the Equal Pay Act 1970 these members are entitled to recover that shortfall, backdated to at least 6 years with interest.

Please note that this letter is written in accordance with Regulation 9 of the above mentioned regulations and therefore relieved of the need to take any further steps under the Statutory Grievance Procedure."

Here, the only reference is to "male comparators": they cannot be identified in any way, and nor is information provided which would enable the employer even to hazard a sensible guess as to who they may be.

32. Individual grievances were submitted to Sandwell in the same form by a number of claimants, but only one, Mrs Morris, is pursuing this appeal. Paragraph 5 of her grievances is as follows:

"The Claimant contends that it is not necessary to name comparators as the essence of the entitlements is the job that the employee does and the fact that it is only jobs performed principally by men that receive these entitlements. However, the Claimant will in particular rely on all the Respondent's male workers who the Claimant contends carry out work of equal value to her. The Claimant invites the respondent to provide details of the same."

33. The claims to the Tribunal identified comparators by naming particular posts and by identifying salary bands for both claimants and comparators. The claims made it clear that the claimants would be seeking equal pay going back six years. With respect to some claimants Sandwell did take the point that no grievance at all had been lodged, although later the Authority subsequently amended the responses and did not take the point at all. However, it was only exceptionally suggested that the grievances which were raised failed to comply with paragraph 6. For most claims this was not a point raised at any stage before a case management discussion on 31 January 2008.
34. The Tribunal agreed that the matter should be heard at a pre-hearing review. There were essentially three issues before the Tribunal. The first was whether the employers could take the point as of right, or whether they required an amendment to the response. The second was whether, if they did require an amendment, it ought to be granted. The third was whether, if it were granted, the grievance failed to satisfy the requirements of paragraph 6.
35. The employment judge concluded, as in the Mid Staffordshire case, that the matter had to be raised either in the original response or by way of amendment. He allowed the amendment with respect to those who could still file claims in time, but refused it with respect to certain others who might lose their right to bring claims altogether because they were no longer employed by Sandwell. There has been no appeal against this aspect of his ruling.
36. The employment judge then considered whether the claims should be struck out in relation to those claimants with respect to whom the amendment had been granted. He concluded that in the light of the decision of the EAT in the Highland Council case, they should. (It is to be noted that his judgment was delivered before the Inner House had given its decision on appeal.) He considered that the grievances had been cast in a way which made it completely impossible for the grievance to be resolved. Indeed he observed that the grievances were in many respects even more defective than those considered by Lady Smith in the Highland Council case. The appellants in this case are the claimants who were struck out. They contend that their grievances did comply with the requirements of the 2002 Act.

The Highland Council litigation.

37. The two decisions in this case, both the EAT hearing before Lady Smith and also the appeal to the Inner House, provide an important context in which this appeal has been conducted. The case concerned multiple equal pay claims against Highland Council. The claim forms included comparators that had not been identified in the grievance letters. The Employment Tribunal accepted the claimants' contention that it was not necessary to specify comparators at all when the stage 1 grievance document was raised. That would require a new grievance to be identified each time a new comparator was relied upon.
38. The purpose of stage 1, the Tribunal found, was to register a complaint and it was sufficient to specify that it was an equal pay complaint. Thereafter, the specification of comparators and other information would be provided as part of the basis of the claim.
39. The Employment Appeal Tribunal allowed the appeal.
40. In a careful and tightly reasoned judgment, Lady Smith observed – and I respectfully agree - that whatever criticisms may be directed at the operation of the statutory procedures, they had to be construed so as to give effect to the intention of Parliament. In particular, any construction had to have regard to their underlying purpose of seeking to encourage conciliation and to avoid disputes having to be resolved in a tribunal setting.
41. Lady Smith concluded that the statement of grievance must identify the comparator, not necessarily by name, but at least by reference to job or job type. The specification of the comparator was not merely the basis of the case; it was the heart of it. She said this (para 31):

"….it seems to me that the exercise of comparison is so fundamental to a complaint that an employer has failed in his equal pay obligations, that there must be some specification of comparator, at least by reference to job or job type in the grievance document. Without that, the employer cannot be expected to appreciate that a relevant complaint is being made. It cannot be enough to state that an equal pay claim is being made without saying more. That would not amount to a relevant complaint of breach of the 1970 Act requirements. I recognise that a distinction has to be drawn between the separate stages of the procedure. The employee does not have to set out the "basis" for the grievance at the first stage. It is, however, wrong, in my view, to regard the specification of a comparator as being a matter of setting out the basis for the grievance. Setting out the "basis" is not a matter of inserting the essentials required to render the complaint relevant but rather a matter of fleshing out those essentials."

42. Her Ladyship then provided a further explanation as to why the comparator should be identified, as follows (para 32):

"The employer who receives the grievance document at the first stage is entitled to a clear communication that a relevant complaint is being made. He is entitled to know if the complaint is something which could give rise to proceedings before an Employment Tribunal since if it is and he does not follow the statutory procedure he could be penalised. He cannot reasonably be expected to appreciate that an employee is asserting that he can and will institute such proceedings if his complaint does not include the essential elements of a relevant claim. 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 2 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 1 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."

43. Accordingly, the EAT concluded that the specification of fresh comparators in the claims presented to the Tribunal meant that the claim was not in essence the same as that identified in the grievance. It did not, however, necessarily follow that a fresh grievance would have to be raised. Lady Smith accepted that a tribunal might properly allow an amendment to the claim to allow fresh comparators to be identified, and the fact that no grievance had been specifically raised with respect to them would be but one factor in the tribunal's exercise of discretion as to whether to allow the amendment or not. Alternatively, the fresh proceedings could be commenced following the lodging of a fresh grievance.
44. The appeal to the Inner House of the Court of Session succeeded in part. The Inner House held that it had been inappropriate for the Employment Tribunal and the EAT to have determined the issue on an essentially hypothetical question, namely whether it was necessary to specify comparators in the step 1 grievance document in an equal pay claim. They observed that in practice it would be exceptional for a bare claim of breach of the Equal Pay Act to be raised as a grievance.
45. The court emphasised that although there must be a correlation between the claim presented to the tribunal and the grievance, whether that condition is satisfied is essentially a question of fact and degree for the Employment Tribunal. An unduly technical or over-sophisticated approach is inappropriate, and the only question is whether essentially the same grievance underlies the claim to the Tribunal as was earlier communicated to the employer.
46. I have set out above (para 16) some of the more important observations made by the court with respect to the analysis of grievance communication. The Lord President also approved of an observation by the judge (HH Judge Richardson) giving the decision of the EAT in City of Bradford MDC v Pratt [2007] IRLR 192 that:

"the provisions should not be construed any more widely than is necessary strictly to give effect to the intention of the statute."

47. The court concluded that the wider observations of Lady Smith should be treated as obiter, although they accepted that the EAT was justified in remitting the case to the Employment Tribunal because the Tribunal had given no proper reasons for its conclusion that the claim in that case was in substance the same as the complaint raised in the grievance.
48. Unfortunately, the issue which the Inner House stated that Lady Smith should not have determined and would but rarely arise has arisen for consideration in this case. As I have observed, the Sandwell case is one where the grievance was raised in only the most general terms, although the claim form was a little more specific and identified comparator job categories.

The contesting arguments of principle.

49. I will first deal with the wider arguments which related to the construction to be placed on the relevant statutory provisions and then analyse them by reference to the particular facts of each case.
50. The argument advanced by the employers relies heavily upon the judgment of Lady Smith in the Highland Council case which, they submit, was plainly correctly decided (even if on appeal the conclusions were characterised as strictly obiter). The argument is essentially as follows:

(1) The purpose of the grievance procedure is to enable a complaint to be resolved internally, rather than going to the Tribunal. It is that complaint, and no other, which must then be lodged before the Tribunal if the resolution of the grievance is unsuccessful.

(2) The claimants' submissions amount to the proposition that it is enough for the claimant to identify a grievance; however, the language of paragraph 6 is that it should be the grievance which underlies the subsequent claim. Merely identifying an equal pay complaint alerts the employer to the fact that a grievance is being raised but it does not identify what the grievance is.

(3) A complaint can only be properly resolved if there is sufficient detail for the employer to be able to understand what is the subject of the complaint.

(4) Since the essence of any equal pay claim, however it is formulated, involves a comparison of the claimant with a comparator of the opposite sex, the employer can only understand the nature of that complaint if the comparator is identified in some way. It is not necessary that the comparator be identified by name, but there should at least be a reference to the comparator's job or job type so that the nature of the complaint can be properly understood and addressed.

(5) The identification of a comparator cannot properly be brought within the concept of the "basis" of the complaint. If that were so then it would render the obligation to identify the complaint in writing virtually meaningless. A simple complaint along the lines "I have an equal pay complaint with respect to male employees who earn more and are employed on work of equal value" tells the employer nothing. He can neither begin to resolve that complaint, nor identify who should be consulted with respect to it. Nor is there any satisfactory way in which a tribunal subsequently presented with an equal pay claim can determine whether it relates to the same underlying complaint as was the subject of such a broad grievance.

(6) It is no answer to say that a claimant will often find it difficult to identify who should be selected as comparator. As Lady Smith pointed out in the Highland case, it is for the claimant to advance her case; she cannot require the employer to do so. Furthermore, as the Inner House pointed out on appeal in that case, if the claimant does not have the full facts it is legitimate to frame a grievance on the basis that there is a suspicion that certain facts exist. Certainty is not required before a grievance can be raised or a claim pursued.

51. The claimants contend otherwise. They rely in particular upon the following points:

(1) It has been stated on numerous occasions that the regulations should not be construed in a technical or over-sophisticated way.

(2) The definition of a grievance shows that it need only raise a complaint about action which the employer has taken. These are very general words.

(3) If the employee indicates in a grievance document that she has an equal pay claim, that necessarily indicates that she is raising a complaint about certain defined conduct of the employer. It shows that she is alleging that she was unjustifiably receiving less pay than someone of the opposite sex who was employed on equal work (in the sense of work rated as equivalent, or of equal value, or like work.)

(4) The effect of section 32(2) is to place a bar on the Tribunal exercising jurisdiction. Any construction of the relevant provisions should be in favour of the employee because the legislation operates as a restriction on a right of access to the courts. Furthermore, as the Lord President stated in Cannop, it should go no further than is necessary strictly to give effect to the intention of the legislature. This is a particularly important principle given that many litigants are individuals in person.

(5) The procedures for dealing with equal value claims make it plain that there is no obligation to identify the comparators until after the claim has been lodged with the Tribunal. It would undermine those provisions if these grievance rules, which were not intended to affect the substance of those claims, could be construed so as to require that information to be given sooner.

(6) It would not reduce the procedures to a dead letter to say that only minimal information is required at the first stage. The employer is entitled to further information from the employee as to the basis of the claim, and if that is not forthcoming there is still a real sanction, by way of reduced compensation, which an employee will suffer.

(7) When determining what are "details of the claim" sufficient to give the Tribunal jurisdiction when a claim is lodged before a Tribunal, the EAT (HH Judge Prophet presiding) has held that the test is simply whether the claim demonstrates that the claimant is alleging a breach of an employment right which falls within the jurisdiction of the Tribunal: Grimmer v KLM Cityhopper UK [2005] IRLR 596 para 15. It would be surprising if a potential claimant had to provide fuller information when stating the nature of the grievance.

(8) If the employers are right and a claimant is required to identify the comparator in the grievance document itself, then this would in any event constitute an infringement of EU law because it may make it in practice impossible to pursue a case before the Tribunal.

The factual context.

52. Before expressing my conclusion on these submissions, I turn to the material features of the three cases which are potentially relevant both to the issue whether a statutory grievance has been raised, and whether the correlation principle has been satisfied.

Suffolk.

53. The grievance there makes plain that the claim is an equal pay claim and that the comparators are employees employed by Suffolk and other NHS employers who have been rated as equivalent under the Agenda for Change Job Evaluation. The comparators are identified more closely by reference to the fact that they work in predominantly male groups, whereas the claimants are in predominantly female groups; and the claim indicates that it is one for back pay. The subsequent Tribunal claim again identifies the comparators as those whose jobs are rated equal or rated lower, but were paid more than the claimants prior to the Agenda for Change Job Evaluation. It also identifies them, as did the grievance, as persons employed in predominantly male jobs, whereas the claimants were in predominantly female jobs.
54. The claimants submit that this is on any view sufficient to constitute proper compliance with the relevant regulations. Though the particular job categories are not identified, there is information from which the employer could make a sensible assessment as to who they would be. They would be selected from those in predominantly male jobs, where those jobs had been rated equal or rated lower in the Agenda for Change Job Evaluation. They would also have to be men who had been paid more prior to the job evaluation.
55. The employers make a number of detailed observations both about the grievance and the degree of correlation with the subsequent claim. First, no job or job group is specified as such in either document. Second, it is said that there was no indication of the period during which the jobs were predominantly male, or the period during which, prior to Agenda for Change, the men had been paid more. Third, there was no identification of what being paid 'more' meant. Given that the Equal Pay Act can apply to both pay and other terms and conditions of employment, there is a fundamental failure to identify the nature of the alleged shortfall. Moreover, since the specific jobs have not been identified in either document it is not possible to say whether the claim corresponds to the grievance or not. Indeed the claim itself states that the comparators will not be specifically identified until further information is provided.

Mid Staffordshire.

56. As we have indicated, the grievance is in essentially the same terms, but the claim form is cast in rather less detail than the Suffolk case. Again it identifies the fact that some of the comparators at least have been evaluated at the same rate as the Agenda for Change Job Evaluation study, but it also refers in the alternative to those who are employed on jobs of equal value. The comparators work in predominantly male groups, whereas the claimants work in predominantly female groups, and it is alleged that the comparators earn or have earned – which would indicate that it is at least in part a back pay claim – considerably more than the claimants. The claimants submit that again there is sufficient information provided in the grievance, for the reasons we have noted, and that there is a plain correlation between what is claimed in the claim form and what was stated in the grievance.
57. The employers submit that not only do these documents reflect the same deficiencies as those in the Suffolk case, but in addition the vague identification as comparators of those male employees whose jobs are of equal value as an alternative to those whose jobs have been rated as equivalent compounds the uncertainty. Again there is no way of ensuring that the claim properly corresponds with the nature of the grievance that was lodged.

Sandwell.

58. The collective grievance was in the most general terms. It simply asserted a breach of the Equal Pay Act and indicated a shortfall which would be claimed for the six years permitted by the Act. The individual grievance says little more, save for making it plain that the claim is an equal value claim. The claim forms themselves in this case did identify particular posts and asserted an equal value claim going back six years.
59. The employers submit that in this case the collective grievance in particular is plainly totally inadequate and the Tribunal was correct to reach that conclusion. The grievance said no more than that there was an equal pay claim. The employers could not conceivably have known that the claimants were seeking to compare themselves with those jobs that were subsequently identified in the claim form. The individual grievance was little better in that although it identified the fact that the claim was an equal value one, it did not say who the comparators were or even what their job categories were.
60. The claimants recognise that in this case the grievance document, particularly the collective one, was in very minimal terms. However, for reasons set out above they contend that it is enough to indicate that it is an equal pay claim and the relevant detail can then be provided at a later stage. Moreover, it was wrong to say that there was no context at all in which these claims should be considered. The employers were well aware that there are many thousands of equal pay claims against local government employers where predominantly female groups were comparing themselves with predominantly male groups. If the employers had wished to know who the comparators were, and if there was ever any realistic prospect of the grievances being resolved locally, then no doubt the identity of the comparators would in the normal way have been provided in the course of discussions.

Conclusions.

61. I start with some general observations about the correct approach, whilst mindful of the cautionary words in the Cannop case that it is always essential to consider the issue of compliance in the light of the particular facts. I am fortified in this approach by the fact that the facts of the Sandwell case come very close to the position which the Inner House surmised would but rarely arise, namely a grievance that does little more than say that there is a claim under the Equal Pay Act.
62. I have reached the conclusion that the submissions of the claimants are correct and that only the minimum requirement is necessary when raising a statement of grievance. 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.
63. I also consider that this construction best meets the injunction of the Lord President in Cannop that the appropriate construction should be one which goes no further than is strictly necessary to give effect to the intention of the legislature.
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 per cent. 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.
66. I recognise that this is not a sanction that arises in circumstances where a collective grievance is lodged under regulation 9. However, I do not think that the fact that Parliament has left it to the collective parties to resolve the grievance according to their own procedures should dictate the proper construction of paragraph 6.
67. Furthermore, it is also a matter of some significance that the claimant has identified a grievance, even if only to identify the jurisdiction to which it relates, because it means that the employer can if he wishes initiate further discussion to find out more about it. No doubt that is what would typically happen.
68. Furthermore, in my judgment the construction I have supported gains some, albeit limited, assistance from the Grimmer case. That held that a Tribunal claim may itself be stated only in the most general terms and nonetheless confer jurisdiction on the Tribunal. Further particulars can be provided if the claim is deficient but a bare claim is enough to be accepted and to ensure that the complaint is lodged in time. If that is correct, then it would be surprising if Parliament were intending to require the statement of grievance to state more, at least in circumstances where it is specifically provided that the basis of the claim can be given at a later stage.
69. I would not, however, place much if any weight on the argument relating to the equal value procedures. It seems to me that they are envisaging a situation where the claimant must provide the name of the comparator within the specified time limit, or at least the information from which the name could be identified by the employers. Moreover, as the Inner House observed, if there are real difficulties in doing this at an early stage (and a claim should not be pursued if it is simply a fishing expedition) then it is still possible for the grievance (and subsequently the claim) to be based on suspicions. (It is perhaps pertinent to note, however, that if these suspicions remain relatively unsubstantiated until after discovery, they are unlikely at the grievance stage to reflect the case which the Tribunal ultimately has to hear and that will render the prospect of resolving the grievance small in any event.).
70. If my construction of what constitutes a grievance is correct, it follows that the correlation principle will in practice be very easy to satisfy. If the grievance states that the complaint is an equal pay complaint, a claim form which reflects that fact will suffice whether the details of the claim are provided or not. Again, this does not make the exercise a pointless one. If the claim raises claims of a quite different jurisdiction, for example a dismissal claim or redundancy, there will obviously be no correlation.
71. No doubt there will be some cases where the claim is made some time after the grievance has been raised and there may be an issue as to whether the grievance is still extant or not, and therefore whether the claim is reflecting the same underlying grievance. However, if that argument is raised it can be resolved by a tribunal on the evidence.
72. Furthermore, in practice I very much doubt whether any sensible step could be taken to resolve the grievance until the basis of the complaint had been identified even if the more detailed requirement for stage 1 were imposed as submitted by the employer. Accordingly it seems to me that there is no particular need to require the written statement itself to give the employer sufficient information to resolve it.
73. I do recognise that the construction I have adopted has certain unsatisfactory and anomalous consequences. Perhaps potentially the most significant is that if this construction is correct, there is an argument that an employee who does identify with some precision the nature of the claim in his or her grievance statement but who subsequently, in the tribunal claim form, adds comparators who were not originally identified in the statement of grievance, may be unable to pursue the claim against those comparators not already identified in the grievance. By contrast, he or she would be able to do so if the grievance had been left suitably general and vague.
74. I am inclined to think that this can be avoided without undue artificiality by treating a detailed statement of grievance as constituting in substance a statement of the basic grievance that there is an equal pay claim and together with the detail, or some of it, which strictly is only required to be provided as part of the basis of the claim. I heard no argument about that and I reach no concluded view one way or the other. However, even if such a construction were not possible, I do not think that this anomaly should dictate the construction of the legislation.
75. I am very conscious that in reaching this decision I am departing from the careful reasoning of Lady Smith in the Highland case. However, I bear in mind that some reservations were expressed by the Inner House about that decision, and I am conscious that counsel in this case have been able to draw upon and develop the issues considered in that decision. In particular, there does not seem to have been much reliance on what I regard as a significant feature supporting my construction namely that even if the bare statement of grievance is enough, a claimant who provides no more will be subject to a sanction at any remedy stage. (Nor, I suspect, was Lady Smith assisted by an observation of mine in the Edebi case where I opined in an obiter comment that the second stage of the standard grievance procedure, where the basis of the claim is provided, involved substantiating the claim by reference to the evidence. On reflection, I would not put the issue in quite that way).

Applying the principles to the facts of these cases.

76. Applying the principles to the facts of these cases, I am fully satisfied that the Tribunal did have jurisdiction, in all these cases. Indeed, it follows inevitably from the minimal approach I have adopted to the information that has been provided in the written statement of grievance.
77. I should add that with respect to both the Suffolk and the Mid Staffordshire cases I would have been inclined to find that an appropriate statement had been raised even if it was necessary to provide more detailed identification of the comparator. It is true that neither the names nor the precise job categories were identified in the grievance, but there was much detail provided which would have enabled the employer to identify at least some of those general job categories with whom comparison was being made.
78. The points raised by the employers in these two cases seem to me to highlight the problem of drawing the line between the grievance and the basis of the grievance. This is avoided if all that is required is the bare statement of the jurisdiction in issue. The employers in their submissions in large part identified as lacking from the written grievance the very kind of information that I would have expected to be provided later. It was either information I would not have expected to be available to the employee at the time when the grievance was lodged, or information about the claim which I would have anticipated could properly be given at the second stage when the basis of the grievance has to be provided.
79. Nor do I think that there is any doubt that the claims did in fact refer to the same complaint as had been raised in the grievances. There was no suggestion that they had not until the decision in the Highland Council case. Moreover, in all cases the terms of the claims were sufficiently close in time and in their nature wholly to justify the conclusion that as a matter of fact and degree the claims correlated to the grievances. That was the finding in the Suffolk case. It was not a specific finding in the Mid Staffordshire case because the issue did not arise once the amendment had been rejected, but in my view it was an inevitable conclusion given the principles I have enunciated.
80. I accept that the Sandwell case raises more difficult issues precisely because it puts in stark terms whether a bare statement that the claim is an equal pay claim suffices. I accept the claimants' submissions that this would have been seen against the context of widespread claims in local government, where female groups are comparing themselves with male groups. However, that gives little additional contextual assistance in identifying the nature of the comparators. However, for reasons I have already given, and even though this complaint is about as limited as it could be to constitute a statement of grievance under the statute, I consider that it states enough to satisfy the requirements of paragraph 6.
81. There is really no basis for concluding in this case either that the claim lodged did not correlate to that grievance. Indeed the grievance is stated as being made in order to comply with the statutory procedures and in anticipation of a claim. The only reasonable inference is that the claim is being made consequent upon and by reference to the grievance. In other words, once the grievance can be identified as constituting a valid statement within paragraph 6, then in my judgment, the only proper inference is that the claim correlated to it.

The procedural issues.

82. I turn to consider the procedural issue that arises in the Mid Staffordshire case. I shall deal with this very briefly since it follows that given my conclusion that the only proper finding is that there had been compliance with paragraph 6, this aspect of the appeal falls away.
83. The issues arising on this aspect of the case are these. Did the employer have to raise the jurisdiction issue by way of an amendment to the response? If so, was the employment judge entitled to exercise his discretion in the way he did or ought he to have given a fuller opportunity to enable the employers to make representations on the matter? Finally, was the exercise of discretion one which the employment judge could properly make?
84. My conclusions are, in summary form, as follows:

(1) It is common ground that an employer is required to raise the issue of jurisdiction - or rather lack of it because of non-compliance with the statutory procedures - in accordance with the Tribunal procedural rules.

(2) In my judgment, since it is a defence to the action, it should in the normal way be raised in the response form: see rule 4(3) which requires an employer to identify all the grounds on which he wishes to rely to defend the claim. If it has not been raised in that way then in my judgment any later attempt to raise it ought to be by way of an amendment to the response. I note that some observations of Underhill J in Plummer v DMC Business Machines plc UKEAT/03881/06 support that view.

(3) Even if that is not so, and the point can also be raised by way of an application under rules 10 and 11, as Ms Ellenbogen submits, there would still – as Ms Ellenbogen also accepts – be a discretion conferred on the tribunal whether or not to allow the application. In my judgment, any such discretion would have to be exercised in precisely the same manner as it would with respect to a proposed amendment of the response. It would make no sense to adopt different principles for regulating what is essentially the same discretion depending upon which procedural route was adopted. Accordingly, nothing turns on the first question in any event.

(4) However, on the particular facts of the case it does appear that the solicitor acting for the employers had made it plain that he was not in a position to argue the question of amendment, and indeed his application was for the issue to be postponed and be considered at a later stage. In the circumstances, and given the way in which the issue had arisen, I think the employment judge ought to have adjourned that aspect of the case to ensure that principles of natural justice were properly complied with. The judge may have thought that the argument was weak, but there were points genuinely in issue and the employers should have been entitled to advance them. In truth, Mr Epstein QC did not in any serious way seek to contend otherwise with respect to this part of the case.

(5) In principle the decision was one open to the employment judge, but the procedural failing vitiated his decision. It matters not, however, since only one answer to the question was open to the Tribunal.

Disposal.

85. For all the reasons I have given, I find that the appeals in the Mid Staffordshire and Suffolk cases are dismissed, and the appeal in the Sandwell case succeeds. The Employment Tribunal has jurisdiction to hear all the equal pay cases raised by these claimants.
86. I have, however, indicated to the parties that given the importance of this issue, not only to the parties in these appeals but to the parties in many other cases currently before the Employment Tribunals, and bearing in mind that there are two conflicting decisions of the EAT on the proper construction of these Regulations, I give the employers permission to appeal.