United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0092/11/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 April 2011

Judgment handed down on 14 July 2011

Before

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

(SITTING ALONE)

1) SEFTON METROPOLITAN BOROUGH COUNCIL

2) SEFTON NEW DIRECTIONS APPELLANTS

HINCKS AND OTHERS RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

JURISDICTIONAL POINTS – 2002 Act and pre-action requirements

PRACTICE AND PROCEDURE – Amendment

EQUAL PAY ACT – Case Management

Equal pay claimants in their original grievances named a single comparator – In their ET1s they named further comparators, and they subsequently sought to name more by amendment – Respondents sought to strike out the additional comparators in the ET1s and resisted the applications for permission to amend – Strike-out refused and amendment applications granted

HELD, dismissing the appeal, that the fact that the further comparators had not been named in the grievance did not mean that the Tribunal was deprived of jurisdiction by section 32 (2) of the Employment Act 2002 – Suffolk Mental Health NHS Trust v Hurst [2009] ICR 1011 followed; Brett v Hampshire County Council (UKEAT/0500/08) distinguished

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1.            This is an appeal against two related interlocutory decisions taken in the context of an equal pay multiple proceeding in Liverpool.  The claims are of the familiar character where claimants employed by a local authority in predominantly female jobs claim the benefit of bonuses accorded to employees in predominantly male jobs.  The multiple in this case comprises some 300 claimants, all of whom presented their claims before a cut-off date of 25 May 2009.  Not all the claimants are represented by the same solicitors.  This appeal is concerned with a group whose claims have been handled by the GMB union, instructing EAD solicitors, (“the GMB Claimants”).  The claims are brought not only against the local authority by whom all the claimants were originally employed (“the Council”) but also against a company to whom some of them have since been transferred under TUPE: I will refer to both as “the Respondents” although they are in fact the appellants before me.

2.            The problem giving rise to the appeal can be straightforwardly stated.  Prior to commencing proceedings, each of the GMB Claimants submitted a grievance under the standard grievance procedure provided for in Schedule 2 to the Employment Act 2002.  In their grievance they identified a single comparator – or, rather, a single comparator job (as to this practice, see Prest v Mouchel Business Services Ltd (UKEAT/0604/10/DA), at n. 4).  I was shown by way of example the case of a Mrs Blundell, who in her grievance sought equal pay by reference to an “A Team Driver”.  In their subsequent ET1s, however, they named four comparator jobs – in Mrs Blundell’s case, not only the A Team Driver but also “Horticultural”, “Rear Entry Driver” and “Road Sweeper”.  In the meantime claimants represented by other firms had identified a number of other comparator jobs, and in due course a consolidated schedule of all the comparator jobs was compiled.  The GMB Claimants decided that they should be claiming by reference to those jobs also and sought permission to amend accordingly. The Respondents applied to strike out the references in the ET1 to the jobs not referred to in the original grievance, on the basis that the claims in relation to those jobs were distinct claims in respect of which no grievance had been lodged and which accordingly the Tribunal had no jurisdiction to entertain by reason of section 32 (2) of the 2002 Act; and they resisted the application for permission to amend for the same reason. 

3.            Following a PHR on 1 October 2010, Employment Judge Robinson, by a Judgment and Reasons sent to the parties on 20 January 2011, decided both points in favour of the GMB Claimants – that is, he declined to strike out the comparisons which had not been mentioned in the grievances and he gave permission to amend in order to enable the GMB Claimants (and indeed others) to advance comparisons with all the jobs on the consolidated schedule.  The Respondents have appealed.  They were represented before me by Ms Louise Chudleigh.  The Claimants were represented by Ms Catherine Rayner.  Both counsel also appeared before the Judge. 

4.            Without disrespect to the Judge, since the principal issues before me are of pure law I will not set out or seek comprehensively to summarise his reasoning, though I will refer to it on a secondary issue: see para. 13 below.

5.            The necessary starting-point is section 32 (2) of the 2002 Act, which provides as follows:

It is of course necessary, if a claimant is not to fall foul of section 32 (2) that the complaint which is the subject of the proceedings and the complaint about which he or she has lodged the grievance should be substantially the same: see Shergold v Fieldway Medical Centre [2006] ICR 304, per Burton P at para. 35, and a number of subsequent authorities.  This has come to be referred to as “the correlation principle”. 

6.            It is the Respondents’ case that the GMB Claimants have complied with the requirement of paragraph 6 only in relation to a claim by reference to the specific comparator job named in their grievance statements.  The claims by reference to the further jobs identified in the ET1s and the amendment applications constitute distinct claims which require the lodging of their own specific grievances.  The Respondents refer to paragraph 11 of my judgment in Brett v Hampshire County Council (UKEAT/0500/08/JOJ), where I said:

“Analytically, each claim by reference to a different comparator is a different claim (or a different cause of action, as it is sometimes put).  This was held by Elias P in this Tribunal in Redcar and Cleveland Borough Council v Bainbridge (no. 2) [2007] IRLR 494: see at paragraph 125 (page 505), effectively adopting the submissions of counsel at paragraph 116 (page 504).  That reasoning seems to have been upheld in the Court of Appeal: see [2009] ICR 133 at paragraph 261 (page 205).  In the light of those decisions, the point was noted as having been common ground – but with the evident endorsement of this Tribunal, chaired by Slade J – in Potter v North Cumbria Acute Hospitals NHS Trust (no. 2) [2009] IRLR 290, at paragraphs 37-40 (pages 905-906).  In my judgment it follows that, even if a complaint to the Tribunal or a grievance document brings together more than one comparison, the correlation issue must be considered in respect of each comparison separately.”

I adhered to that analysis recently in Prest v Mouchel (above). 

7.            The GMB Claimants contend that that argument is inconsistent with the decision of the Court of Appeal in Suffolk Mental Health NHS Trust v Hurst [2009] ICR 1011.  In that case the Court held, affirming the decision of Elias P in this Tribunal ([2009] ICR 281), that an employee sufficiently satisfied the requirements of paragraph 6 by lodging a statement that she had a claim of equal pay, even if she identified no comparator: see in particular para. 57 of the judgment of Pill LJ (pp. 1026-8).  The Claimants say that it can make no difference that they have gone further than they needed by identifying a comparator.  Their having done so does not have effect to limit the complaint: for the purpose of section 32 (2) all that matters is that both the grievance and the subsequent complaint to the Tribunal related to a claim for equal pay.  That approach is not, they submit, inconsistent with the passage quoted above from my decision in Brett.  The effect of Hurst is not that all claims made by reference to the Equal Pay Act 1970 constitute a single cause of action, but rather that step 1 of the statutory procedure does not require an employee to identify all the facts necessary to what may be one or more causes of action.  The position is fundamentally different in the case of the modified procedure - which is what I was concerned with in the relevant part of the judgment in Brett – because under that procedure, in contrast to the standard procedure, the employee is required not only to “set out the grievance” but also to set out “the basis for it” (see most recently the judgment of this Tribunal in Beddoes v Birmingham City Council (UKEAT/0037/10/MW), at paras. 50-59, where I have sought to summarise the effect of the earlier authorities). 

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

9.            Ms Chudleigh had two counter-arguments which I need to address.

10.         First, she referred to para. 73 of the judgment of Elias P when Hurst was before this Tribunal, where he said this (at p. 300):

11.         Secondly, Ms Chudleigh referred to another part of my judgment in Brett, where I was dealing with claims in respect of which a “collective grievance” under regulation 9 of the 2004 Regulations had been lodged: it is common ground that the material terms of regulation 9 are identical to those of paragraph 6 of Schedule 2 to the 2002 Act.  In that grievance, the jobs done by a number of claimants (as they subsequently became) were misdescribed.  The employers took the point that that invalidated the grievance.  The claimants sought to rely on Hurst.  I held that the grievance was indeed non-compliant.  I said, at para. 25:

12.         I therefore reject the argument that the GMB Claimants had failed to comply with the requirements of section 32 (2) in relation either to the comparisons pleaded in the ET1s or to the further comparisons sought to be introduced by amendment.  Having reached that conclusion, I need not consider an alternative submission advanced by Ms Rayner, in reliance on Highland Council v Transport and General Workers Union [2008] IRLR 272, to the effect that section 32 (2) did not prevent claims which had not been the subject of a grievance being added by way of amendment.

13.         There remains the question whether, even if there was no jurisdictional objection to amendment, it should not have been permitted as a matter of discretion, having regard to the ordinary principles summarised in Selkent Bus Company Ltd v Moore [1996] ICR 836.  The Judge said, at para. 86 of the Reasons, “on the balance of fairness and prejudice I must allow the amendments”.  He acknowledged that there would be some prejudice to the Respondents.  But he pointed out that the prejudice to the GMB Claimants would be serious in that it would leave them with a single comparator, and if they failed in that comparison their claims would be “stopped in their tracks”.  He clearly had in mind in striking that balance the fact that all the “new” comparators had already been relied on by other claimants: that is, I think, what he meant by saying, at para. 86, “I see the listing of comparators more as a case management issue than anything more significant”.  I entirely agree with his assessment.  As we observed in Beddoes (above), it is particularly important in this kind of mass litigation to observe what is in truth a general principle, namely that amendments should not be denied purely punitively and where no real prejudice would be done by their being granted: see para. 13.  It would be unsatisfactory, and indeed potentially unjust, that the comparators on whom claimants whose cases were materially similar could rely would vary according to who they were represented by.  Ms Chudleigh submitted that the Judge had made an error of law by directing himself that the amendments involved no new cause of action.  I agree that that was wrong: see, most recently, Prest v Mouchel (above).  But I do not agree that that error makes a material difference in the circumstances of this case.  It is not as such a bar to amendment that it introduces a new cause of action (even if the statutory time limits are past): see Transport and General Workers Union v Safeway Stores Ltd (UKEAT/0092/07).  The amendments in the present case did not introduce any issues, factual or legal, to the litigation that were not in substance present already.

14.         I accordingly dismiss the appeal.