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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Beddoes & Ors v Birmingham City Council (Equal Pay Act : Other establishments) (Rev 1) [2010] UKEAT 0037_10_0905 (9 May 2011)
URL: http://www.bailii.org/uk/cases/UKEAT/2011/0037_10_0905.html
Cite as: [2011] 3 CMLR 42, [2010] UKEAT 0037_10_0905, [2010] UKEAT 37_10_905
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Appeal No. UKEAT/0037-43, 0045-48, 0053-59/10/MW
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
Judgment handed down on 9 May 2011
Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR R LYONS
MS. L. BEDDOES and others APPELLANTS
BIRMINGHAM CITY COUNCIL RESPONDENT
BIRMINGHAM CITY COUNCIL APPELLANT
MS. L. BECK and others RESPONDENTS
BIRMINGHAM CITY COUNCIL APPELLANT
MS. S. BARKER and others RESPONDENTS
BIRMINGHAM CITY COUNCIL APPELLANT
MS. S. AKHTAR and others RESPONDENTS
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(one of Her Majesty’s Counsel) MS. LOUISE CHUDLEIGH (of Counsel) Instructed by: The Solicitor to the Council Ingleby House 11-14 Cannon Street Birmingham B2 5EN |
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(one of Her Majesty’s Counsel) Instructed by: Thompsons City Gate (East) Tollhouse Hill Nottingham NG1 5FS |
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For the “Cross Claimants” |
MS. SANDHYA DREW (of Counsel) Instructed by: Stefan Cross Solicitors Buddle House Buddle Road Newcastle upon Tyne NE4 8AW |
SUMMARY
EQUAL PAY ACT – Other establishments
PRACTICE AND PROCEDURE – Amendment
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Three groups of appeals arising out of mass equal pay litigation
(A) Amendment permitted to correct misdescriptions by Claimants of the jobs that they were doing
(B) Employees employed by the Council in non-teaching roles in community schools entitled to compare themselves with employees in other Council establishments, notwithstanding power of school governors to require Council to engage employees in schools otherwise than on recommended terms – “Single source” requirement discussed - North Cumbria Acute Hospitals NHS Trust v Potter and South Tyneside Metropolitan Borough Council v Anderson followed
(C) Claimants who had purported to submit grievances under the modified procedure which failed properly to state the basis of their complaints – see City of Bradford Metropolitan District Council v Pratt – not debarred by section 32 (2) of the Employment Act 2002 because the grievances in question fell within the terms of reg. 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 – Discussion of whether agreement to the use of the modified procedure can be withdrawn
THE HONOURABLE MR JUSTICE UNDERHILL
INTRODUCTION
2. The proceedings are of what is now a familiar type in which employees in majority-female jobs in local authorities seek the benefit of bonuses paid to employees in majority-male manual jobs. It is not necessary at this stage to say more about the details of the claims. But we should note that – as again is typical – the Claimants fall into two groups, namely those whose jobs have been “rated as equivalent” with those of their male comparators within the meaning of section 1 (2) (b) of the Act by appearing in the so-called “Blue Book”[1] (“the RAE Claimants”) and those who have to prove that their jobs and their comparators’ are of equal value within the meaning of section 1 (2) (c) (“the EV Claimants”).
5. The appeals fall into three groups, as follows:
(A) The Job Title Amendment Appeals. These appeals concern Claimants who in their ET1s misdescribed the jobs which they were doing at the material times and who subsequently sought permission to amend to correct the error. There are fourteen appeals by Claimants to whom such permission was refused: these are nos. 37-38, 41-43, 45-48, 54 and 57-59[2] (“described in the title to the appeal as “Beddoes and others”). Most of the appeals are by individual Claimants, but one is by a group of ten, so that the total number of Claimants appealing is 23. There is also an appeal by the Council – no. 56 (“Beck and others”) – against a decision by the Tribunal to permit amendment in some 29 cases. A separate appeal challenging the same decision – no. 55 (“Barker and others”) – was withdrawn shortly before the hearing.[3]
(B) The School–Employed Claimants’ Appeal. This (no. 39) is an appeal by the Council against a decision that Claimants employed in community schools for which the Council was the local education authority could compare themselves for the purpose of section 1 (2) of the Act with other Council employees.
(C) The Section 32 Appeal. This (no. 40) is an appeal by the Council against a decision rejecting its contention that the Tribunal had no jurisdiction to entertain the claims of a number of Claimants by reason of non-compliance with the requirements of section 32 (2) of the Employment Act 2002.
6. Although some Claimants in the Barker multiple are acting in person, the great majority were at the time of the decisions appealed against represented by one of four firms of solicitors – Stefan Cross, the Wilkes Partnership, Carvers and Thompsons (the latter representing those Claimants who were bringing proceedings through their trade union) – but the Carvers and Wilkes Partnership Claimants have since transferred their representation to Stefan Cross. The Tribunal decided not to involve the unrepresented Claimants in the hearings of spring and summer 2009, and accordingly no such Claimant was formally a party to any of the decisions appealed against or is involved in this appeal.[4] The Cross Claimants have been represented before us by Ms. Sandhya Drew of counsel and the Thompsons Claimants by Mr. Andrew Short QC. The Council has been represented before us by Mr. Paul Epstein QC, leading Ms. Louise Chudleigh.
7. We apologise for the time taken to promulgate our decisions in these appeals. To a small extent this is a result of further materials having to be supplied following the hearing. To a more considerable extent it is the result of the opacity of the procedural history. As will appear, the chapter of errors and misunderstandings accompanying the various applications which led to the orders appealed against, and likewise the appeals themselves, has made getting to the actual issues much more complicated than it should have been and has meant that the hearing was, and to some extent this judgment also is, disproportionately devoted to resolving procedural tangles. But the delay mainly reflects the pressure of other work at this Tribunal. However, we do not believe that our delay should have contributed significantly to delay in the progress of the litigation overall.
(A) THE JOB TITLE AMENDMENT APPEALS
INTRODUCTORY
8. As was no doubt inevitable with such a large group of Claimants, in a number of cases the ET1 misdescribed the job which the individual Claimant was doing at the time that the claim was presented (or at the termination of the Claimant’s employment, if sooner) or omitted to mention that in an earlier part of the period covered by the claim (which can of course in principle go back as far as six years) she had been doing a different job. In many of the 52 instances before us the misdescriptions were random, and we need not enumerate them all. One example, simply by way of illustration, is a Play Care Co-Ordinator who was described in her ET1 as a Nursery Nurse; another is a Student Support Adviser who was described as a Care Maintenance Assistant. But there are two more general patterns:
(1) A large number of misdescriptions concerned the jobs of “Senior Lunchtime Supervisor” (“SLTS”), “Lunchtime Supervisor” (“LTS”) and “Deputy Lunchtime Supervisor” (“DLTS”): we will refer to these compendiously as “the LTS jobs”. Most of the misdescriptions consisted of SLTSs describing themselves as LTSs, but there were also several examples of SLTSs who correctly so described themselves but omitted to mention that they had previously been LTSs. We need not trouble to describe the details of the errors concerning the post of DLTS.
(2) Nine Care Assistants and one Home Care Assistant described themselves as Health Care Assistants.
9. When the Council identified these misdescriptions it applied to have the claims in question struck out. The Claimants’ response was to apply to amend in order to plead the correct job title.[5] Some of these applications were made reasonably promptly in correspondence; but the Thompsons Claimants only made their application orally at the strike- out hearing, which took place over several days at the end of March and the beginning of April 2009.
THE COUNCIL’S APPEAL: THE LTS CASES
14. We start by setting out the Tribunal’s reasons for its decisions in the LTS cases. We take by way of example the case of Mrs. Beck. Hers was a case of the most common type, where an SLTS described herself as an LTS. The structure of the Reasons in her case is as follows:
(1) Paras. 1 and 2 explain the background and the misdescription.
(2) Paras. 3 and 4 summarise the evidence. None had been given for the Claimant. A Mrs. Holland, who had been closely involved in the management of the claims, was called for the Council. She had explained the difference between the LTS and SLTS roles. She had also given evidence about the strain which the claims were placing on the Council’s resources and the difficulties which would arise if further factual issues had to be investigated at this comparatively late stage in the litigation.
(3) At para. 5 the Tribunal directs itself as to the proper approach to determining an amendment application by reference to the judgment of Mummery J in Selkent Bus Company Ltd v Moore [1996] ICR 836.
(4) At paras. 6 and 7 the Tribunal summarises counsel’s submissions as follows:
“6. On behalf of the claimant her counsel, Ms. Omambala, submitted that the failure to identify the correct job title had been as a result of an administrative error by Thompsons. The claimant’s current role was a slight role change but essentially the two roles were virtually the same. It was a small error. It was a relabelling exercise. The claims were both equal pay claims. If the claimant was not allowed to amend and had to re-issue her claim then because of the state of the litigation it would not be possible for her claim to be dealt with at the same time as other elements of her claim. Ms. Omambala provided no explanation for the failure to correctly identify the role of lunchtime supervisor and the timing of institution of proceedings. She gave no details of when it became apparent that the incorrect job title had been given in the originating application and the extent of any delay in the application to amend.
7. On behalf of BCC Mr. Epstein submitted that the application was an unparticularised application which provided no explanation for the delay. The roles were significantly different. The current litigation had begun in August 2006. It was complex and at an advanced stage. The complexity had contributed substantially to the slippage in hearing dates. To allow amendments at this point would make it very difficult for the cases then to catch up with other related cases. It would impose an unreasonable burden on BCC to have to carry out investigations into the new categories which would not be completed in time for the GMF hearings listed for the autumn. There would still need to be work carried out on some comparators who are identified in relation to the new job role. The grievance under section 32, Employment Act 2002 had only referred to the role of LTS. The appropriate course of action would be to refuse the application and to strike the claim out.”
(5) The Tribunal’s conclusion is at paras. 8 and 9 as follows:
“8. Having considered the documentary evidence and the evidence of Ms Holland and having taken into account the submissions on behalf of both parties, the tribunal concluded that (1) the application had been presented in the most general terms without any clear explanation let alone justification for why the error in the job description had occurred in the first place (2) the statutory grievance letter had not referred to the role of SLTS (3) there was no significant difference in the two posts but it would involve different comparators (3) [sic] the litigation had been proceeding since August 2006 (4) it should not cause substantial problems if the amendments were allowed and (5) it would be possible for BCC to complete the necessary work to investigate the amended categories and preserve the existing timetable (6) that timetable had been subject to very substantial slippage because of the complexities arising from the litigation.
9. In balancing the respective hardship to both parties the tribunal concluded that the application to grant the amendment would be granted as it amounted to a relabelling exercise which would not cause significant problems for BCC but would cause significant prejudice to the claimant if refused. The respondent's application to dismiss the proceedings would be dismissed.”
17. In its original Notice of Appeal the Council advanced two grounds:
(1) Time limits. In three cases out of the 29 – those of Carol Gudgeon, Helen (NB not Vera) Pitt, and Carol Skinner, all Thompsons Claimants – the Claimant had as at the date of the application to amend ceased to be in the Council’s employment more than nine months previously: all three were SLTSs who had mistakenly described themselves as LTSs. Any fresh claim under the 1970 Act would accordingly have been out of time: see section 2 (4), as modified by reg. 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004. The Council contended that that fact should have been treated by the Tribunal as an absolute bar to amendment. No such argument is recorded by the Tribunal in its summary of Mr. Epstein’s submissions in the cases in question, which is in identical terms to that in Mrs. Beck’s case. But he told us that the point had indeed been taken; and that is confirmed by his written submissions for the Tribunal, of which we have seen a copy.
(2) Exercise of discretion. Various challenges were made to the reasons given by the Tribunal for exercising its discretion in favour of permitting amendment.
19. We will take first the two points going to jurisdiction.
21. As to the section 32 point, we gave our decision in the course of the hearing that permission to amend the Notice of Appeal would be refused. We said that we would give our reasons later. Our principal reason is simply that the point was not taken below: although the fact that the Claimants in question had presented their grievances on the wrong basis was raised as a discretionary consideration (see factor (2) in the Tribunal’s standard para. 8), it had not been contended that it was an absolute bar, which is a fundamentally different point. The practice about raising a new point in this Tribunal is very strict: see, e.g., Jones v Burdett Coutts School [1999] ICR 38, which emphasises that a new point will not be permitted to be taken, save in exceptional circumstances, even where it is one of pure law which does not require further factual findings. Mr Epstein submitted that Brett had only been decided since the decision of the Tribunal. That is so, but the point decided by it was available to be taken by the Council if it had chosen. That is sufficient; but we would add if it were necessary that we were not convinced that further inquiry might not be needed in some or all cases in order to establish precisely what had been done by way of lodging a grievance.
28. We accordingly dismiss the Council’s appeal (no. 56).
THE CLAIMANTS’ APPEALS: THE NON-LTS CASES
29. We can take these appeals rather more shortly in the light of the ground already covered. In these cases also Mr. Epstein does not pursue his “time limits” point (there are apparently at least eight cases to which it might apply); and we have not permitted him to argue that non-compliance with section 32 constitutes an absolute bar to amendment.
31. The first port of call must be the Tribunal’s Reasons. The misdescriptions in the non-LTS cases are more various, and the Tribunal heard submissions from four different representatives. Accordingly there is a greater degree of variety in the Reasons in the non-LTS cases than in the LTS cases. Nevertheless the broad pattern is the same, with the Tribunal’s reasoning and conclusions appearing in two final paragraphs (typically, though not always, also nos. 8 and 9). We take by way of example the Reasons given in the case of Alison Walsh, who had been described in her ET1 as a “care assistant” but who sought to amend to describe herself as a “general assistant”.[6] Paras. 8 and 9 read as follows:
“8. Having considered the documentary evidence and the evidence of Ms Holland and having taken into account the submissions on behalf of both parties, the tribunal concluded that (1), the application had been presented in the most general terms without any clear explanation let alone justification for why the error in the job description had occurred in the first place (2) there was a significant difference in the two posts which would involve difference comparators (3) the litigation had been proceeding since August 2006 (4) it would now cause substantial problems if the amendments were allowed and (5) it would be difficult if not impossible for BCC to complete the necessary work to investigate the amended categories and preserve the existing timetable. That timetable had been subject to very substantial slippage because of the complexities arising form the litigation.
9. In balancing the respective hardship to both parties the tribunal concluded that the application to grant the amendment would be refused and the respondent's application to dismiss the proceedings would be granted.”
The equivalent paragraphs in the other cases display minor variations, but we have detected (subject to the oddity raised in n. 6) none that seem of real significance for the purpose of the issues before us.
“Each new claim would have to be considered on its fact in order to determine how it fits into the litigation and whether new matters arise by way of defence or preliminary issue or others”.
It seems to us that the true position is as follows:
(1) The Claimant’s job. Since it was the Council itself which had started the ball rolling by pointing out that the Claimant’s ET1 had identified the wrong job, there was unlikely to be any issue about what job she was in fact doing. All or most of the “new” jobs were jobs in respect of which other claims arose, so the Council would not have to start investigating a whole new field.
(2) The comparators. Contrary to what is said at factor (2), it was common ground before us that the changes to the description of the Claimant involved no change in the identity of the pleaded comparators. What the Tribunal may have meant was that, since the Cross Claimants in particular had pleaded a very large number of comparators, the specific comparators on whom their claims would ultimately concentrate might be different if their own job was different from what was pleaded. But the fact remains that all the relevant comparators were already in play. Ms. Holland is no doubt right that an exercise would have to be done to fit the amended claims into the overall picture and see if any special points arose; but this is a matter of analysis (of a comparatively small number of cases) and not of primary factual investigation. In any event we agree with Ms. Drew that it is impossible to see why this needed to be done before the hearing of the GMF issue or therefore how “the existing timetable” would be jeopardised. But we also agree with her that if there was some problem of this kind the claims could simply be transferred to the Smith multiple.
35. We accordingly allow the Claimants’ appeals in these cases (37-38, 41-43, 45-48, 54 and 57-59).
(B) THE SCHOOL-EMPLOYED CLAIMANTS’ APPEAL
INTRODUCTORY
“ … [F]or purposes of this section … men shall be treated as in the same employment with a woman if they are men employed by her employer or an associated employer at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions are observed either generally as for employees of the relevant classes.”
39. So far so good. But it is the Council’s case that, whatever the position might be on the conventional approaches referred to above, it is now necessary in construing and applying the concept of “same employment” under the 1970 Act to give effect to the decision of the ECJ in Lawrence v Regent Office Care Ltd. [2003] ICR 1092, applied by the Court of Appeal in Robertson v Department for Environment Food and Rural Affairs [2005] ICR 750, namely that comparison for the purpose of what is now art. 157 of the Lisbon Treaty (formerly art. 141, and before that art. 119) should only be between persons whose terms and conditions derive from a “single source”. The position of non-teaching employees in community schools is peculiar. Although they are employed by the local authority, the governing body of the school appears under the relevant regulations to have ultimate control over what employees are engaged and on what terms: we go into more detail below. The Council contends that that degree of control is such that it is the governing body rather than itself which is to be treated as the source of the terms of the school-employed Claimants, and that they are accordingly to be regarded as in different employment from their comparators. What is essentially the same point, albeit arising in a different context, was considered by this Tribunal (Nelson J. presiding) in North Cumbria Acute Hospitals NHS Trust v Potter [2009] IRLR 176, where the employers’ submission was rejected: see paras. 80-87 (p. 185). But Mr. Epstein submits that Potter was wrongly decided on this point.
“ … [F]or the reasons advanced by the Council, and recorded in the Tribunal Decision, the Tribunal ought [to have] acceded to the invitation to make findings of fact … on the section 1 (6) Equal Pay Act 1970 issue”.
In his skeleton argument and his oral submissions before us Mr. Epstein accepted that in reality the point raised by the appeal was whether it was correct in law that section 1 (6) had to be glossed or construed so as to incorporate a “single source” requirement, since if it was not, there was no point in findings of fact being made: indeed he acknowledged that it was doubtful whether any factual findings were required in any event.
43. Neither Mr. Short nor Ms. Drew contended that the Council should be treated as bound by the concession said to have been made by Mr. Epstein. It seems to us unlikely in the extreme that Mr. Epstein intended to concede what the Tribunal appears to have understood him to concede. He says that he was never intending to do more than accept that the Claimants were in the same employment subject to the single source point – or, as he also put it to us, that they satisfied the criteria for same employment set out in Smith; and that makes obvious sense. There is no value in us now trying to establish whose fault it was that that intention was not properly conveyed or understood.
44. In the end therefore the point before us came down to the questions (a) whether under the arrangements governing the employment of non-teaching staff in community schools the governing body rather than Council was the “source” of those terms in the relevant sense and (b) whether, if so, it followed that the employees in question were not in the same employment as other Council employees. Mr. Epstein acknowledged that on ordinary principles we would follow Potter as regards point (b) – which renders point (a) academic - unless we were satisfied that it was plainly wrong, and he said that he would be content, if we so directed, not to run the point before us but to leave it for a further appeal. We indicated that we would hear his submissions.
THE PARTIES TO THE APPEAL
45. Before proceeding to the substantive point we have to deal with a procedural issue. The Council failed in the Notice of Appeal to identify as respondents any of the school-employed Claimants represented by Stefan Cross, who numbered about ninety[7]. A belated application was made to join the Claimants in question as parties. That application was opposed. We announced at the hearing that we would allow the application, with reasons to follow. These are our reasons.
46. The relevant circumstances are unfortunately complicated. They can be summarised as follows:
(1) Appellants are required by rule 3 (1) (a) of the Employment Appeal Tribunal Rules 1993 (as amended) to submit a Notice of Appeal in accordance with (so far as relevant for present purposes) Form 1. Para. 4 of the form requires the appellants to identify the other parties to the proceedings and to give their names and addresses: those parties will, by being so identified, be treated as the respondents to the appeal.
(2) In lodging its Notice of Appeal on the “single source” issue, dated 16 December 2009, the Council’s solicitor filled in para. 4 as follows:
“The parties to the proceedings before the Employment Tribunal other than the Council are all represented by Messrs. Thompsons of … and those that are now independent are listed in the annexed schedule.”
(3) That way of answering para. 4 did not comply with the Rules. Ignoring for the present the reference to the unrepresented claimants – i.e. those referred to as “those that are now independent” – it is inadequate to identify the other parties simply by saying they are represented by Thompsons: the question is who they are, not who they are represented by, and the correct course would have been to identify them in a schedule (which would have in practice also identified their representatives, since Thompsons’ address would no doubt have been given as their address).
(4) However, that error by itself was not serious. The Notice of Appeal was served on Thompsons and they understood it to be intended to refer to those school-employed Claimants whom they represented, of whom they had a record. The more serious error was that there was no reference – even by this imperfect method – to the school-employed Claimants represented by Stefan Cross; and the Notice of Appeal was not served on them. This – we are told, and we have no reason to doubt – was simply a mistake: there was no relevant distinction between those school-employed Claimants represented by Thompsons and those represented by Stefan Cross.
(5) We return to the question of the unrepresented Claimants. The reference to them in the Notice of Appeal was a further error on the part of the Council, since, as noted at para. 6 and n. 4 above, the unrepresented Claimants were not parties to the decision under appeal. However, by a yet further error, the schedule was inaccurate and included some Claimants who were in fact represented: two of these were represented by Stefan Cross, a Ms. Jilka and a Ms. Hopkins.
(6) Although Stefan Cross were not themselves served with the Notice of Appeal, because none of the persons identified in para. 4 were identified as represented by them, Ms. Jilka forwarded to them the Notice of Appeal which had been served on her. They accordingly became aware of the appeal. Mr. Doran of Stefan Cross wrote to this Tribunal, with a copy to the Council, on 10 March 2010: his letter was clearly expressed and raised some pertinent questions by way of a request for clarification. (His letter had to be corrected on 17 March 2010 because he had, understandably, been confused by the involvement of Ms. Jilka; but his early letter still stood.) The Council did not reply. However, since Stefan Cross had put the Registrar on notice that they were representing Ms. Jilka and Ms. Hopkins, they were on 25 March served with a copy of the Notice of Appeal, and they duly lodged a Respondents’ Answer.
(7) It was not until November 2010 that the Council woke up to what had happened. It was at that stage that it applied to amend the Notice of Appeal to add the school-employed Claimants who were represented by Stefan Cross. There was a further complication. It had recently sought to withdraw the appeals in the case of the unrepresented Claimants (see n. 4 above), and it had included in that request the cases of Ms. Jilka and Ms. Hopkins, overlooking the fact that it had now been confirmed that they were represented by Stefan Cross and accordingly were parties to the decision below. It sought to retract that withdrawal. Its request to do so arrived before any order had been drawn, and the Registrar did not implement it.
47. In our view, although the performance of the Council’s solicitor throughout this sorry story was very unimpressive, even making allowances for the pressures of handling such complex litigation, it would not be in the interests of justice to refuse permission to amend. It would be extremely unsatisfactory if an important point of the kind under consideration were not be to be permitted to be taken because of an administrative error; and all the more so when the result would be that the point was open in some cases but not in others, depending on the identity of the Claimants’ representative. Stefan Cross were of course as all times aware of the appeal, through acting for Ms. Jilka and Ms. Hopkins, and Ms. Drew was in no difficulty dealing with the point before us since she was able to rely both on the skeleton argument of her predecessor, Ms. Genn, in the Tribunal and on Mr. Short’s submissions before us.
THE SUBSTANTIVE ISSUE
48. As we have said, there is already authority in Tribunal, namely Potter, rejecting Mr. Epstein’s contention on the single source point. We should only depart from that authority if we were satisfied that it was plainly wrong: Secretary of State for Trade and Industry v Cook [1997] ICR 154. That is not the case: on the contrary, we think that Potter was rightly decided on this point. In these circumstances we will give our reasons only in fairly summary form.
49. We start with the formal position as regards the terms and conditions of non-teaching staff in community schools. Reg. 15 of the School Staffing (England) Regulations 2003 provides, so far as relevant, as follows:
“(1) Subject to regulation 18, where the governing body identifies a support staff post to be filled, it may recommend a person to the authority for appointment.
(2) Any such recommendation must be sent to the authority with a job specification for the post. The job specification must include the governing body’s recommendations as to—
(a) the duties to be performed,
(b) the hours of work (where the post is part-time),
(c) the duration of appointment,
(d) the grade, and
(e) the remuneration.
(3) The grade must be on the scale of grades applicable in relation to employment with the authority, and such as the governing body considers appropriate.
(4) Where the authority has discretion with respect to remuneration, it must exercise that discretion in accordance with the governing body’s recommendation. The authority may be regarded as having discretion if any provisions regulating the rates of remuneration or allowances payable to persons in the authority’s employment either—
(a) do not apply in relation to that appointment, or
(b) leave to the authority any degree of discretion as to the rate of remuneration.
(5) If within a period of seven days after receiving the job specification the authority makes written representations to the governing body relating to the grade or remuneration to be paid, the governing body must—
(a) consider those representations, and
(b) where it decides not to change the grade or remuneration to be paid, notify the authority in writing of its reasons.
(6) Subject to regulation 11(2), the authority must appoint a person recommended to the post by the governing body, unless regulation 11(1)(c) applies.”
Thus although a local authority can make representations to the governors as to the grade and remuneration at which a member of the non-teaching staff is appointed, and will no doubt do so where their “recommendation” will involve a departure from the grading/remuneration accorded to employees doing work of equal value elsewhere in its employment, the governing body is not obliged to accede to any such representations and can in principle require the authority to take on employees on terms which it does not itself consider appropriate. Nor does the authority have any indirect means of control: specifically, it has no power to remove the governors (save only for its own appointees, who constitute only one-fifth of the governing body)[8]. The evidence before the Tribunal was that in the case of Birmingham governors almost always appointed non-teaching staff on terms which the Council regarded as appropriate, but there was a reference – albeit wholly unparticularised - to exceptional cases where that had not occurred. Mr. Epstein submitted that in those circumstances the Council did not have the ultimate power to decide the terms and conditions of employment of non-teaching staff in community schools, notwithstanding that they were its employees.
50. The effect of the Regulations was considered by the Court of Appeal in South Tyneside Metropolitan Borough Council v Anderson [2007] ICR 1581. This was an equal pay case in which claimants employed by local authorities in schools also compared themselves with council employees employed elsewhere. The single source argument was not run, but there was an issue as to whether common terms and conditions were observed at the establishments in question. The Court, in its judgment delivered by Sedley LJ, dealt with that issue principally on another basis, but at pp. 1591-2 it said:
“27. But we think it right to go one step further and to assume, contrary to what we have held, that it is necessary for the Claimant to establish that her terms and conditions and those of a street cleaner hypothetically employed by the local authority at the school would be broadly similar. In our judgment, as in that of the employment tribunal, they would be, because both would be on grade 1 of the White Book scale. The margins of discretion which Mr Bowers' argument seeks to vest in the governors are largely illusory. Any relevant appointment of a Claimant will be under r 11(1)(a), that is to say under a contract of employment with the local authority. The governors will have recommended her for appointment with a job specification that included her proposed duties, hours, duration, grade and remuneration: see r 15(2). But by r 15(3) the grade is required to be on the applicable scale – here the White Book scale – and to be “such as the governing body considers appropriate”, if necessary (see reg, 15(5)) after considering the local authority's representations in response to the proposal. It seems to us both legally and factually fanciful to suppose that a governing body can by this means select and bind the local authority to an inappropriate grade for a new member of the school's staff. There will ordinarily be a known pay grade for learning support assistants which it will be both unrealistic and arguably perverse for governors to seek to depart from.
28. The provision in r 15(4) that any local authority discretion with respect to remuneration is to be exercised in accordance with the governing body's recommendation does not alter this situation. It licenses neither the governing body nor the local authority to make discretionary payments which create spurious or unjustified pay differentials. If applicable, it simply reflects legitimate increments (Mr Bowers instances productivity bonus, unsocial hours payments or protective clothing allowances) which lie outside the White Book. But, notwithstanding that one job may attract such payments while another on the same grade does not, the terms and conditions governing them will, or should, still be the same.
29. If necessary we would therefore uphold the employment tribunal's alternative finding to the effect that Ms Irving and Mr O'Brian, if employed at the same establishment, would have had common terms and conditions of employment.”
51. That reasoning was not of course, as Mr. Epstein pointed out, directed at the “single source” issue. Nevertheless it seems to us directly applicable. If, as Sedley LJ, says, the idea of the governors “bind[ing] the local authority to an inappropriate grade” is “legally and factually fanciful”, then we do not see how it can be relied on in support of the contention that the governors rather than the Council were the true “source” of the terms and conditions of the school-employed Claimants. The wholly unspecific evidence that there had been rare instances of a departure from the terms regarded by the Council as appropriate does not seem to us to be a sufficient basis to distinguish Anderson.
52. If that is right, the single source point falls at the first hurdle. But we also think that if it scrambled over that hurdle it would still fall at the next. If the definition of “same employment” is construed naturally, and as it always has been, so that all employees of the same employer are available as comparators for equal pay purposes - provided they satisfy the establishment criterion – we cannot see that that involves any departure from the requirements of EU law. The most that can be said is that, in certain highly unusual cases (for it will on any view be very unusual for an employer not to have the legal power to determine the terms and conditions of employment of his own employees), the 1970 Act may be more generous in the comparisons that it permits than EU law; but that is not objectionable in principle. In fact we doubt whether there is any real difference. It seems to us that in a case where an employer accords different terms and conditions to employees doing equal work of value only because some other person has the power to set the terms of the comparator he would very probably have a defence under section 1 (3) of the Act.
53. We accordingly dismiss the Council’s appeal.
(C) THE SECTION 32 APPEAL
THE STATUTORY PROVISIONS AND THE CASE-LAW
54. This appeal is concerned with whether some 130 Claimants (all represented by Thompsons) satisfied the requirements of the dispute resolution regime under the Employment Act 2002, which was still in force at the time that their claims were presented. The effects of these ill-considered and ill-drafted provisions are mostly exhausted, but they continue to throw up problems in the context of the mass equal pay litigation because of the slow pace at which perforce these cases move. The present appeal illustrates yet again the plethora of satellite issues to which they can give rise. There is now a wealth of authorities – most authoritatively the decision of the Court of Appeal in Hurst to which we refer below - emphasising that it is the duty of tribunals who have to interpret and apply these provisions to do so, so far as possible, in a way which minimises the risk of claimants foundering on the rocks of technicalities which have nothing to do with the justice of the case – though we accept that there are cases where that has proved impossible.
55. Section 32 (2) provides:
“An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applied if:
(a) it concerns a matter to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and
(b) the requirement has not been complied with.”
A claim for equal pay is one of the jurisdictions which section 32 applies.
56. Paragraphs 6 and 9 of Schedule 2 contain the first steps of, respectively, the “standard” and “modified” grievance procedures which applied at the material time by virtue of reg. 6 of the Employment Act 2002 (Dispute Resolution) Regulations 2004. The standard procedure is the default procedure. The modified procedure applies, at least potentially, where the employment has terminated. The full conditions for its application are stated in reg. 6 (3) as follows:
(3) Subject to paragraphs (4) to (7), the modified grievance procedure applies in relation to a grievance where—
(a) the employee has ceased to be employed by the employer;
(b) the employer—
(i) was unaware of the grievance before the employment ceased, or
(ii) was so aware but the standard grievance procedure was not commenced or was not completed before the last day of the employee's employment; and
(c) the parties have agreed in writing in relation to the grievance, whether before, on or after that day, but after the employer became aware of the grievance, that the modified procedure should apply.
57. There is an important difference between the requirements of paras. 6 and 9. Para. 6 provides that:
“The employee must set out the grievance in writing and send the statement or a copy of it to the employer.”
It has been held by the Court of Appeal, upholding the decision of Elias P in this Tribunal, that in the case of an equal pay claim that obligation can be satisfied simply by her stating that she has a claim for equal pay: it is unnecessary that she give any other details, or even to identify her comparator - see Suffolk Mental Health Partnership NHS Trust v Hurst [2009] ICR 1011. It is only at the next stage – step 2 – that she has to state the “basis” for her grievance (see para. 7 (2) (a)). By contrast, para. 9 of Schedule 2 provides that:
“The employer 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”.
Thus the modified procedure, unlike the standard procedure, requires that the employee’s initial grievance statement include the “basis” for his grievance.
58. The existence of this distinction was confirmed, and what stating the basis of the grievance requires in the context of an equal pay claim was considered, by this Tribunal (HH Judge Richardson sitting alone) in City of Bradford Metropolitan District Council v Pratt [2007] IRLR 192, in which judgment was handed down on 9 January 2007. The claimant’s grievance statement in that case had said:
“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. ... .”
Judge Richardson referred to the authorities on the requirements of step 1 of the standard procedure, i.e. under para. 6, namely Shergold v Fieldway Medical Centre [2006] IRLR 76 and Canary Wharf Management v Edebi [2006] IRLR 416. He then continued, at paras. 39-46 (pp. 196-7):
“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 [i.e. the modified procedure]. 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 Brigden [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.”
59. Applying those principles to the facts of the case in Pratt, Judge Richardson held that the claimant’s letter did not set out the basis of her grievance. He said, at para. 50:
“... 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.”
(As noted by Judge Richardson, the employer did in fact ask for further information, which was supplied and did provide the basis for her grievance; but the details so supplied did not correspond to her claim as pleaded.) A similar conclusion was reached by this Tribunal (Elias P. sitting alone) in Riley v First Choice Homes Oldham Ltd (UKEAT/0051/08), where an employee seeking to comply with the modified procedure had explicitly said that she did not need to name any comparators but had said that she would “in particular rely on all Respondent’s male manual workers noted as being on the same grade as her”. As in Pratt, the employer had asked for further information, but none had been supplied.
60. The judgment in Pratt evidently took both the trade unions advising the Claimants and the Council by surprise. Although it was not contended before us that Judge Richardson’s approach was wrong - or indeed that the case was wrongly decided on its facts – the distinction between the requirements of the standard and the modified procedures had not previously been generally appreciated.
61. Finally, it is important to note that the Regulations provide that in certain circumstances the requirements of paragraphs 6 and 9 are deemed to have been complied with. For present purposes we are concerned only with reg. 9. Reg. 9 (1) reads:
“Where either of the grievance procedures is the applicable statutory procedure, the parties shall be treated as having complied with the requirements of the procedure if a person who is an appropriate representative of the employee having the grievance has-
(a) written to the employer setting out the grievance; and
(b) specified in writing to the employer (whether in setting out the grievance or otherwise) the names of at least two employees, of whom one is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance.”
Such a grievance is generally referred to as a “collective grievance”.[9] It will be noted that, like the standard procedure but unlike the modified procedure, there is no requirement for the representative to set out the basis for the grievance.
THE APPEAL
62. The cases with which this appeal are concerned are all cases in which the Claimants were no longer employed by the Council and grievances were lodged by them or on their behalf which at least arguably invoked the modified grievance procedure. The Council had at the time that the grievances were lodged agreed to the use of the modified procedure and responded on the basis that step 1 of that procedure was satisfied; and in its original ET3s it did not contend otherwise. But following the decision in Pratt it took the point that the grievances submitted in each case did not, or did not sufficiently, set out the basis of the complaints; and that accordingly section 32 (2) operated to deprive the Tribunal of jurisdiction.[10] That point was considered by the Tribunal between 29 June and 1 July 2009. It held that the grievances in question did comply with the statutory requirements and accordingly that it had jurisdiction to consider the claims.
63. The grievances lodged in the cases in question were not all in the same form, and although the Tribunal in its Reasons treated the issues in relation to them as if they were the same in all cases we think that they need to be treated in separate groups. We will consider the various groups in turn. There is a further point (“the withdrawal point”) which applies to some individual cases in each of the groups: we deal with that at paras. 92-97 below.
UNISON TYPES 1 & 16
64. In the case of most of the Claimants whom it represented UNISON submitted a grievance statement on their behalf. The version that it used first was designated “type 1” before the Tribunal. It was used in over 100 cases. A typical example, written on 2nd June 2006, reads as follows:
“I write on behalf of the following UNISON member in accordance with s. 32 of the Employment Act 2002 to raise a formal grievance under the Employment Act 2002 (Dispute Resolution) regulations 2004.
Mrs. Margaret Rose Moore was employed by Birmingham City Council until 5th May 2006 as a Home Care Assistant based at Reservoir Rd.
This member has suffered a shortfall in terms of the remuneration that she has received for her work, compared to that of male comparators. Under the Equal Pay Act 1970, she is entitled to recover that shortfall, backdated for at least six years with interest.
Please note that this letter us written in accordance with regulation 9 (modified procedure) of the aforementioned regulations. I am therefore relieved of the need to take any further steps under the statutory grievance procedure.
I look forward to hearing from you within 28 days.
Please address all correspondence marked for my attention to UNISON Birmingham Branch ... .”
The letter was signed by Mr. Mills of UNISON’s Birmingham office. It was sent as an attachment to an e-mail (though it seems that in many or all cases hard copies followed by post). A slight variant of this letter was designated “UNISON type 16” before the Tribunal, but it was agreed before us that it could be treated for present purposes as identical to type 1.
65. The Council’s reply was in standard terms. It was addressed to the employee c/o Mr. Mills and starts as follows:
“Re: Equal Pay Grievance
I write in response to the letter, dated 2 June 2006, submitted on your behalf by your Unison representative. It has been confirmed by Unison that their letter is a request for your grievance to be dealt with under the modified procedure set out in the Employment Act 2002 (Dispute Resolution) Regulations 2004. I am, therefore, responding to your grievance in accordance with step two of that procedure by setting out the City Council’s response in writing.”
It proceeds to explain, in terms that we need not set out in full, that the subject-matter of the grievance would be addressed as part of the ongoing single status negotiations between the Council and the recognised trade unions and that on the conclusion of those negotiations the Council would write again “with details as to whether we accept that there have been any equal pay issues”. In short, the response was that the grievance would be parked for the time being.
66. It is clear from the terms of its reply that the Council understood the grievance to be intended as a request to use the modified procedure and as being intended to constitute step 1 of that procedure.[11] If that understanding was correct, the modified procedure did indeed apply, since its response plainly constituted agreement to that course and the requirements of reg. 6 were accordingly satisfied.
67. If the modified procedure applied, then on the face of it step 1 was not satisfied, since a mere statement that the employee had an equal pay claim by reference to “male comparators” does not set out the “basis” of her complaint. The facts are indistinguishable from those in Pratt: see paras. 58-59 above.
68. The reasons for the Tribunal’s conclusion to the contrary appear at paras. 37.7.6-7 of its Reasons, as follows:
“37.7.6 When asked the question whether a particular form of grievance is compliant with the provisions of the Regulations, the answer is dependent on an examination of the content of the grievance together with the response of the former employer. Whereas in Pratt and Riley it was clear that the grievance was identified as being unsatisfactory and the point made to the employees that that was so, the position in the BCC cases in quite different. BCC have chosen to clearly indicate, regardless of the nature of the grievance letter, that they do not require any more information and that they are content to proceed with the review and negotiations with the intention of resolving the grievances. Entirely consistent with that analysis is the fact that very large numbers of these claims have been already settled as a result of these negotiations. There is nothing in the letter of response used by BCC in all cases to induce any of the claimants to believe that the document was inadequate to enable the grievance to be pursued.
37.7.7 If the argument in contradiction is
that by allowing such generally worded grievances to be accepted as compliant
with the MGP provisions, although the basis is set out in a cursory manner, the
answer is that, firstly, one has to view the grievance in the light of the
response to it. If the response indicates that the purpose of the Regulations
can be achieved and the grievance resolved, even though this may be clearly
through the process of further discussion, in the judgement of the tribunal
that is sufficient reason to consider that the GMC 1 letter and the other GMB
and UNISON variants referred to are to be regarded as compliant in the light of
BCC’s reaction to them.”
69. We cannot accept that reasoning as expressed. Specifically, we do not accept that the question whether “a particular form of grievance is compliant with the Regulations [recte Schedule 2 of the Act] ... is dependent on ... the content of the grievance together with the response”. As a matter of principle the statement must be construed without reference to subsequent events (cf. Dick Lovett Ltd. v Evans (UKEAT/0211/07)). However, Mr Short sought to reformulate the Tribunal’s reasoning more acceptably. He submitted that the underlying principle established by Pratt was that an employee must set out his grievance “in sufficient detail to enable the employer to respond” (see para. 44); that in the present cases it was known from the start that the Council’s response would be, as it was, “wait and see”; and that in those circumstances no further detail was required or expected. The importance of the Council’s letter was not that, as such, it could alter the character of the grievance stated but that it was evidence of the common expectation as to how that grievance would be handled, which informed the question of what degree of detail was required. We floated with Mr Short whether that argument could be characterised being one of estoppel by convention. He was chary about accepting that because, he said, it had not been put that way below; but he said that his approach produced the same result by another route.
70. We were attracted by that submission, not least because it is very unappealing that the Council should now be relying on a point which it did not take at the time – and which, if it had, the Claimants or their union would no doubt have taken steps to address. But in the end we think that Mr Short is using the language of the authorities to place an unjustified gloss on the requirements of the statute. When Judge Richardson in Pratt and Elias P in Riley spoke of giving the employer sufficient information for him to be able to “respond”, that plainly means “respond substantively”. The fact that, here, it was (correctly) anticipated that the employers’ “response” would be to kick the ball into touch, does not get round the fact that the employees never supplied anything that could reasonably be described as stating the basis of their complaints, in the sense required by para. 9.
71. However Mr. Short had an alternative answer. He submitted that the UNISON type 1 letter on its true construction did not, however the Council might have understood it, constitute an attempt to invoke the modified procedure but was rather the submission of a “collective grievance” under reg. 9 of the 2004 Regulations. He pointed out:
(a) that it said that it was written in accordance with “regulation 9 of the aforementioned regulations” (being the 2004 Regulations) – i.e. not to paragraph 9 of Schedule 2 to the Act;
(b) that it claimed that for that reason UNISON (not, N.B., Mrs. Moore) was “relieved of the need to take any further steps under the statutory grievance procedure”, which Mr. Short submitted was a paraphrase of the operative words of reg. 9, namely that the parties should be “treated as having complied” with the applicable procedure.
He acknowledged the reference (albeit in brackets) to “modified procedure”, but he said that that was not inappropriate since reg. 9 applies “where either of the grievance procedures is the applicable statutory procedure”, and it was understandable that UNISON would wish to point out that this was a case to which the modified procedure would otherwise apply.[12]
72. Mr. Epstein in response submitted that the reference to “regulation 9” was evidently merely a slip and that, read as a whole, the letter was rightly understood to be an attempt to invoke the modified grievance procedure. He referred not only to the use of the phrase “modified procedure” but to the statement that the author “looked forward to hearing from” the Council: a response was required if the letter was intended to invoke the modified procedure - both because the Council’s agreement was required and because of the requirement for a substantive response (i.e. “step 2”) – but not under reg. 9. As for Mr. Short’s point (b), that went nowhere because the phrase used was equally apt to the modified procedure: once the employee had lodged her grievance all that was required was to await the Council’s response.
73. Thus far we prefer Mr. Short’s submission. The letter is indeed ambiguously drafted, and we will never know what the draftsman really intended. The most likely thing is that he was himself, like so many others, thoroughly confused by the inter-relationship of the Schedule and the Regulations. But the letter must be construed objectively. The central fact is that it explicitly states that it is being written in accordance with reg. 9 of the 2004 Regulations, and in our view neither of the counter-indications relied on by Mr. Epstein is sufficient to negate that plain statement.
74. But that is not the end of the matter. It is a requirement of reg. 9 that the “appropriate representative” should have said in writing – “whether in setting out the grievance or otherwise” - that he was raising the same grievance on behalf of at least one other named employee (see para. (1) (b)). The UNISON type 1 letter does not do so. It identifies a single individual – in our example Mrs Moore - on whose behalf the union is raising the grievance. Some time was spent before us in examining whether “UNISON type 1” letters were sent out under cover of e-mails attaching more than one letter, on the basis that, if they were, that could constitute the “specification” of other persons raising the same grievance. We agree that that would be so, but it has eventually transpired, from a schedule and sample e-mails submitted following the hearing, that this does not provide the answer in every case: although many grievances were indeed sent in batches, others (including Mrs. Moore’s) were sent on their own.[13] However Mr Short submitted, and we accept, that the question whether grievances were submitted under the same cover is not dispositive. The crucial phrase is “or otherwise”. By sending identical letters at or around this time, whether singly or in batches, UNISON in our view sufficiently specified (in writing) that it was raising the same grievance on behalf of all the employees in question.
75. The same argument was advanced before the Tribunal but it was rejected (see Reasons para. 37.6.2) on the grounds that:
“There is nothing in the email to suggest that it is sent as a collective grievance. It is a fact that a number of grievances on behalf of members are sent at the same time but those grievances are quite specifically not collective grievances. If the grievances themselves or the accompanying email had in some way suggested that regulation 9 was being relied on this would have been a different matter.”
For the reasons already given, we believe that the UNISON type 1 letters did “suggest ... that regulation 9 was being relied on”. The Tribunal’s point is more apposite to cases which made no reference to reg. 9 at all: as to these, see para. 82 below.
76. The complaint raised under reg. 9 must of course be substantially the same as that raised in the proceedings: the so-called “correlation principle” must apply equally to reg. 9 as to cases where step 1 of one of the grievance procedures has to be gone through. But the effect of the decision in Suffolk Mental Health Partnership NHS Trust v Hurst is that a grievance referring simply to an unparticularised claim under the 1970 Act satisfies the correlation principle as regards a subsequent claim in the Tribunal in which the necessary particulars are fully given.
77. We accordingly uphold the decision of the Tribunal in the cases of those Claimants who relied on the UNISON type 1 and 16 letters, albeit for a different reason.
UNISON TYPE 3
78. In the cases of some of its members UNISON gave them a pro forma letter (“UNISON type 3”) to complete in their own names: there are about twenty such cases before us. These were then collected and submitted by the union by e-mail. A few were submitted with others (either of the same type or type 1) but most were submitted individually.[14] After giving basic employment details about the complainant (which include the fact that she is no longer in employment) the letter continues:
“[I] ... believe that I have a claim for Equal Pay against you as my employer at the time. I am therefore writing to you to register this potential claim and am now raising a formal grievance under the Employment Act 2002 (Dispute Resolution) Regulations 2004. Please confirm that it would be appropriate to use the modified statutory grievance procedure.
I believe that historically, I have not had the benefit of terms which male members of staff employed by you are entitled to. As a consequence, I have suffered a shortfall in terms of the remuneration that I have received from my work, compared to that of various male comparators.
Under the Equal Pay Act 1970, I am entitled to recover that shortfall which may include basic pay, bonus pay and enhancements to basic pay, backdated to six years with interest.
I am of the belief that at this stage it is not necessary to name comparators. The entitlements are related to the jobs that the male employees perform, and it is only jobs performed principally by men that receive these entitlements.
I look forward to hearing from you within 28 days.”
79. The Council’s standard reply was in substantially the same terms as its response to UNISON type 1.
80. Unlike type 1, type 3 letters were unambiguously expressed as complaints under the modified procedure. For the reasons given at para. 67 above, they do not satisfy the requirements of para. 9. Nor, for the reasons given at para. 70, are the Claimants saved by the fact that the Council at the time treated the grievance letter as compliant. On the face of it, therefore, the Tribunal had no jurisdiction to consider the complaints of Claimants who had submitted grievances in this form.
81. However, Mr. Short contended that in this case also reg. 9 applied. Clearly the position is less straightforward, since the letters contain no reference to reg. 9 and they are in the name of the individual employee, with no reference to her trade union at all. However he relied on the fact that they were, as we have said, all lodged by the union by e-mail. He submitted that by sending them in that way UNISON had “written to the employer setting out the grievance” within the meaning of reg. 9 (1) (a); and that, that being so, the reasoning which we have accepted above in relation to the type 1 letters applies equally in these cases. Mr. Epstein responded that the union had done no more than allow itself to be used as postman: it could not fairly be said itself to have written to the employer on the employees’ behalf or to have itself set out their grievance.
82. We have not found this easy, but in the end we accept Mr. Short’s submission. We acknowledge the point made by the Tribunal at para. 37.6.2 (see para. 75 above): it is indeed at first blush surprising to treat as “collective” a grievance which is clearly expressed as being raised by an individual. But there is no requirement in reg. 9 that the written statement of the grievance referred to at para (1) (a) should itself refer to the existence of a “collective grievance”. Take a case where a group of individual employees had written statements in their own names raising the same grievance and the union had sent them to the employer under cover of a letter saying “we raise on behalf of the employees whose statements we enclose the grievance which is there stated”. In our view the requirements of reg. 9 would plainly be satisfied. (A similar point, though possibly not quite the same, was made by Elias P. in this Tribunal in Alitalia Airport SpA v Akhrif [2008] ICR 813, at para. 49 (p. 822).) The difficulty in the present case is that the union did not expressly say that: what it “wrote” consisted of no more than the covering e-mail, which itself says nothing beyond identifying the attachments. The question is whether it is legitimate to regard that as implicitly treating the statements attached as a grievance being raised by it on behalf of the statement-makers. On balance, we think that it is. In reaching that conclusion we bear in mind two general points. In the first place, it is, as we have said, important wherever possible to apply the provisions of the 2002 Act in a way which avoids creating procedural traps which have no relationship to the underlying purpose of the legislation. Secondly, and relatedly, our approach corresponds to the substance of the matter. In our view, it was sufficiently apparent, even as regards employees in whose cases the type 3 letter was used, that the individuals in question intended UNISON to have the carriage of their dispute. The fact that they used a pro forma supplied by the union might not be enough, but what seems to us decisive is that the letters were not submitted by the individuals but were entrusted to the union, which lodged them singly or in batches alongside the (more numerous) type 1 forms, without any apparent differentiation. It should, we think, have been clear to the Council that in substance UNISON was acting on behalf of all the employees from whom it submitted grievances. In that context, it is in our view legitimate to regard the union’s e-mail (which of course constitutes “writing”) as doing more than simply forwarding the employee’s grievance as a ministerial act: rather, it is properly to be construed as the union associating itself with the grievance so sent. Thus, taking the e-mail and the attachment together, UNISON can properly be said to have “written to the employer setting out the employee’s grievance”.
83. There remains the difficulty that the language of the grievance letter unequivocally refers to the modified procedure. But we do not regard that as fatal. The question is whether reg. 9, on its objective meaning, interpreted purposively in the way discussed above, applies to the situation in these cases. If it does, the fact that the letter describes itself as invoking the modified grievance procedure does not matter: that reference is superseded by the fact that the union has “taken over” the grievance. The Claimants’ invocation of the modified procedure did not by itself give rise to any inconsistent obligation on the part of the Council: quite apart from the fact that they failed to comply with step 1, all that the Council had to do was to respond to the grievance in writing, which is in no way inconsistent with a collective procedure. (It is also worth bearing in mind in this context that the 2002 Act regime does not in fact create any legal obligation, as such, to comply with the statutory procedures. It does no more than prescribe when they “apply” and then provide for ill-consequences to parties who fail to comply with them.)
84. We accept that UNISON itself, in providing the pro forma to employees, did not have reg. 9 in mind, and it may well not have done so in forwarding them on either (though, as we say, it may be doubtful how well anyone really understood the distinctions involved). Thus it may only be by a happy accident that the union has achieved a result which it did not intend. But no injustice is done. It hardly behoves the Council to complain, since it is in its turn seeking to take advantage of a misunderstanding of the requirements of para. 9 which it itself shared at the time.
GMB TYPES 1 & 2a
85. These letters were sent by Mr. Hinks of the Birmingham and West Midlands office of the GMB. They were sent by e-mail in like manner to the UNISON e-mails. They begin as follows:
“Please note we have been instructed to represent the above named in relation to an Equal Pay claim. Please note that this is a step one grievance letter in line with both your Internal Procedure, and in accordance with the Employment Act 2002 (Dispute Resolution) Regulations 2004.
The basis of the Claimant's complaint is set out below, and we would be grateful if you would confirm that it would be appropriate to use the modified statutory agreements procedure.”
They continue by purporting to set out the employee’s grievance over ten numbered paragraphs. Para. 5 reads:
“The Claimant contends that it is not necessary to name comparators as the essence of the entitlement is the job the employee does and the fact that it is only jobs performed principally by men that receive these entitlements. However, the Claimant will rely in particular on all Respondent's male manual workers noted as being on the same pay grade as her. The Claimant invites the Respondent to provide details of the same.”
86. The Council sent its standard-form response as set out above.
87. In the light of the prior discussion we can state our conclusions in relation to these letters shortly. They do not comply with the requirements of para. 9 of Schedule 2 because, to go no further, they do not identify any comparators; nor can the Claimants rely on the terms of the Council’s response. But they constitute a written grievance statement by the union, as representative of the employee in question, under reg. 9 (1) (a) of the 2004 Regulations, notwithstanding the reference to the modified grievance procedure; and the GMB at or around the same time lodged several other such grievances, which amounts to specifying that it was raising the same grievance on behalf of other employees within the meaning of reg. 9 (1) (b). Accordingly section 32 (2) does not operate to deprive the Tribunal of jurisdiction.
UNISON TYPES 6b, 7b & 8
88. These forms of letter were sent to the Council by Thompsons, as solicitors for the employees in question. Mr. Short accepted that in those circumstances they could not fall within reg. 9. In most respects they are identical to GMB 1 & 2a, but they were modified following the decision in Pratt so as to identify comparators. They did so in a substitute para. 5 which reads (in the example supplied to us):
“The Claimant will rely on the following comparators:
(i) Street Cleaners namely: Beatsweepers, Mobile Crews Driver, Mobile Crew Driver, Mobile Crew Loader, Small sweeper driver, Graffiti Driver, Graffiti Loader, Site Squad Loader.”
(There is no (ii).)
89. Mr. Epstein’s case in relation to this form of grievance was twofold:
(1) He submitted that it did not sufficiently set out the basis of the employee’s complaint because it failed to specify (a) the employee’s work location (save in the case of Unison 8) and (b) the date from which it was said that the claim commenced.
(2) He submitted that in any event it constituted compliance with the statutory procedure only as regards the comparators named.
90. As to point (1), neither of the pieces of information of whose absence Mr. Epstein complained seemed to us to be essential for the Council to know the basis of the claims in question.
91. As to point (2), Mr. Short did not dispute this. He accordingly accepted that the Tribunal only had jurisdiction to determine the Claimant’s claim in so far as it depended on a comparison with the terms accorded to the identified class of comparator.
THE WITHDRAWAL POINT
92. In the cases of ten employees who had lodged grievances invoking the modified procedure (though in the case of one of them the letter was in fact UNISON type 1) letters were written to the Council following the decision in Pratt purporting to withdraw the employees’ consent to the use of that procedure. The Council responded asserting that the procedure had been completed by its own step 2 letter and withdrawal was no longer open to the employees. It was the case of these employees before the Tribunal that the grievances fell to be treated as if submitted in accordance with the standard procedure – in which case they were compliant. In respect of three of them a belt as well as braces was employed, since UNISON wrote a letter purporting to raise a collective grievance under reg. 9.
93. The Tribunal held (Reasons para. 37.3) that it was indeed not open to the Claimants in question to withdraw their agreement. They have challenged that decision. In the light of our conclusions above this issue too is now academic, but we will deal with it briefly in case we are wrong.
94. The starting-point is that in our view the natural reading of the Regulations is that a party agreeing to the use of the modified procedure, in place of the standard procedure, should be bound by his or her choice. People are normally bound by what they agree, all the more so where the other party has acted on the agreed basis. It is important to bear in mind that, although for the purpose of section 32 (2) we are only concerned with step 1 of the two procedures, the decision whether to use the modified procedure equally determines the subsequent step or steps. If either party – and in principle it could be the employer as much as the employee – were free to revoke an agreement to the use of the modified procedure, that would mean that the remainder of the standard procedure would have to be gone through, with any defaulting party being at risk of penalisation under section 31. We do not believe that the rule-maker intended that obligations (or at least, in view of the point made at the end of para. 83 above, quasi-obligations) could be switched on and off at will in that way. It was objected that such a conclusion meant that the Claimants in question were not allowed to escape from the “trap” into which they had inadvertently fallen. But that is only half true. We are indeed saying that they cannot undo their original choice to proceed under the modified rather than the standard procedure; but the difficulties caused by that choice can be resolved at any time by supplying the “basis” which was initially omitted (which would have had to be done in any event at step 2 if the standard procedure had been chosen). True, the delay while that information is supplied may mean postponing the date at which they would otherwise have commenced their proceedings, which could, in a case where the claim went back the full six years, diminish the period of arrears in respect of which a claim could be made; but that is not obviously unacceptable.
95. We therefore think that the Tribunal was right to reject the argument that the Claimants who had purported to withdraw their consent to the use of the modified procedure could rely on their original grievances as complying with para. 6 of Schedule 2 – that is, with step 1 of the standard procedure.
96. The position, however, seems to us to be different as regards the three Claimants in whose case UNISON subsequently presented a collective grievance. There is nothing in the language of reg. 9 to suggest that it is disabled once agreement to use the modified procedure is reached. Indeed the opposite is the case: on a strict reading of reg. 6 (3) (b) the modified procedure will only be “the applicable statutory procedure” if agreement has been reached (cf. n. 12 above). And as a matter of substance we see nothing surprising or objectionable in the pursuit of an individual grievance being superseded by the employee’s decision to join in with others raising the same grievance under the auspices of a trade union or other representative: the underlying philosophy of reg. 9 is plainly that the introduction of a collective element makes a fundamental difference to how a grievance falls to be handled.
97. Had this point been dispositive, therefore, we would have held that the Tribunal had jurisdiction in the cases of the three employees in whose case a collective grievance was presented but not of those who had simply purported to withdraw their agreement to the use of the modified procedure.
CONCLUSION
98. We accordingly dismiss the Council’s appeal, albeit on different grounds, save that in the case of those Claimants who presented grievances of UNISON types 6b, 7b and 8 we declare that the Tribunal has jurisdiction over their claims only in so far as they compare themselves with classes of comparator named in their grievances.
[1] This is the equivalent of what is called “the White Book” in most of the local authorities which have featured in the reported cases.
[2] This is a shorthand. The full numbers are of course in the format which appears in the title to this Judgment.
[3] The circumstances of the withdrawal are briefly explained at para. 22 below.
[4] We should however record that the Council at first failed to appreciate that none of the unrepresented Claimants were affected by the decisions, and the staff of this Tribunal were put to a great deal of unnecessary trouble in attempting to communicate with a long list of unrepresented Claimants. The Council belatedly recognised its error and withdrew the appeals in question. It is fair to say that a proper apology was tendered to the Tribunal for all the trouble caused.
[5] This at least is how the situation was explained to us. It may be rather over-simple, since we are not clear on what basis the claims of the SLTSs who had omitted to mention their earlier role as LTSs could have been struck out. But nothing turns on this.
[6] We at first intended to take the case of Laura Beddoes, since this group of Claimants bears her name. Paras. 8 and 9 of the Reasons in her case are broadly the same as those in Ms. Walsh’s case, as set out in the text above, except that “factor 4” reads “it should not [sic] cause substantial problems of the amendments were allowed”. That is hard to reconcile with factor (5) and indeed with the eventual decision, and since it is a unique formulation we wonder whether “not” is not a slip for “now” (as in the Walsh Reasons). Fortunately, in view of our reasoning as regards the non-LTS Claimants generally that question need not be resolved.
[7] The number was originally thought to be over 160, but it has since come down.
[8] See regs 6, 13 and 24-27 of the School Governance (Constitution) (England) Regulations 2007.
[9] It was rightly pointed out that this term does not appear in the Regulations and should not be used as a substitute for the language of reg. 9. But we will use it, with appropriate caution, as a convenient shorthand.
[10] The point required to be taken by amendment of the ET3: see DMC Business Machines plc v Plummer (UKEAT/0381/06). Permission to amend was given by order dated 24 February 2009.
[11] It was common ground before us that the reference in the Council’s letter to UNISON having “confirmed” that its letter was a request for the grievance to be dealt with under the modified procedure is misleading in so far as it suggests that anything had been said by UNISON beyond what could be inferred from the letter itself.
[12] There is a wrinkle here, since the modified procedure will not be the “applicable statutory procedure” unless the parties have so agreed (see reg. 6 (3)). If Mr. Short’s argument works, the applicable procedure at the moment that the letter was written was the standard procedure, because no agreement for the use of the modified procedure had yet been reached. But nothing turns on this.
[13] In summary the position is as follows. The UNISON type 1 letters were, as we have said, sent as attachments to e-mails from Mr. Mills. Some were sent singly but the majority were sent in batches, each under cover of a single e-mail. The list of attachments in the covering e-mails identified the name of each employee concerned. The names sometimes also appeared in the subject-line: otherwise that simply said something like “4 [or whatever] more UNISON grievances”. The text said nothing except “hard copies in the post” or occasionally something like “more UNISON EPC grievances”. (We were told nothing about any hard copy versions, but we can assume that any covering letter or compliments slip likewise said nothing of substance.)
[14] The summary in n. 13 above applies equally to type 3.