Caroline Aitchison And Others V. South Ayrshire Council
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Emslie,Lord Marnoch |
| Neutral Citation | [2011] CSIH 72 |
| Date | 18 November 2011 |
| Docket Number | XA52/11 |
| Court | Court of Session |
| Published date | 18 November 2011 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Emslie Lord Marnoch | [2011] CSIH 72 XA52/11 OPINION OF LADY PATON in the appeal under section 37(1) of the Employment Tribunals Act 1996 by CAROLINE AITCHISON and OTHERS Claimants and Respondents; against SOUTH AYRSHIRE COUNCIL Respondents and Appellants: _______ |
Respondents and Appellants: Truscott, Q.C.; Maclay Murray & Spens
18 November 2011
Employment law: collective grievance[1] Section 32 of the Employment Act 2002 introduced a grievance procedure, the purpose of which was to encourage employers and employees to negotiate and settle disputes without having to resort to tribunals and courts. Where a collective grievance on behalf of a number of employees was envisaged, the Employment Act 2002 (Dispute Resolution) Regulations 2004 provided inter alia:
"9(1) ...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."
The wording of the regulation attracted considerable criticism. One unfortunate consequence was that if an employee's name was not properly specified in writing to the employer in terms of Regulation 9(1)(b), that employee could not proceed to present his or her case to an Employment Tribunal: section 32(1) and (2), and Schedule 2 paragraph 6, of the Employment Act 2002.
Equal pay collective grievance[2] By letter dated 11 August 2006, Unison Trade Union ("Unison") advised South Ayrshire Council ("SAC") as follows:
"Dear Mr Cairns
Collective Grievance for Back Pay under the Equal Pay Act 1970 - revision of initial documentation
Notwithstanding your letter refusing to accept the initial grievances lodged on behalf of UNISON members re Back Pay under the Equal Act 1970; this letter represents a grievance lodged by us as the recognized trade union on behalf of those members, your employees, who are entitled to back pay under the Equal Pay Act 1970. In particular we are submitting grievances on behalf of those people whose names are listed in the Schedule annexed to this letter. This list may require subsequent revision. It is my understanding that any employee who believes they have a grievance has an entitlement in law to have their grievance heard, I would therefore be obliged if you could schedule hearings for those persons named in the attached.
The grievance relates to back pay under the Equal Pay Act 1970 arising out of our members' employment with you for the periods stated in the Schedule. Our members are doing work which has been rated equivalent under the Job Evaluation Scheme adopted by the Council in 1st July 1999, or alternatively whose work is of equal value to other of your employees ('the comparators'). The comparators are paid more than our members.
Our members work in groups who are predominantly female and/or the comparators work in groups that are predominantly male. As such they are entitled to equal pay with their comparators unless you can prove that there is a valid objective reason for paying them less than their comparators. In our view there is no valid objective reason. Our members are therefore entitled to back pay in respect of the difference in pay between them and their comparators, for up to 5 years.
Please may we have in writing an acknowledgement that in principle you will pay the back pay owing to our members under the Equal Pay Act and any proposals you wish to put forward to settle this issue".
[3] No written schedule was attached to the letter. A computer disc (CD) enclosed with the letter contained an Excel Spreadsheet with 19 files. For this appeal, the 19 files were printed out and lodged as a production, with each printed file annotated with a manuscript heading. The headings were, respectively, (1) South Ayrshire Council; (2) SAC Grievance; (3) Admin Assts; (4) catering; (5) classroom assts; (6) cleaners; (7) clerical assistants; (8) home care; (9) library assistants; (10) miscellaneous; (11) Nursery Nurse; (12) probation officer; (13) query job; (14) receptionist; (15) school crossing patrol; (16) SEN; (17) technicians; (18) warden; (19) South Ayrshire CASE. The first file contained the names and addresses of the entire membership of Unison working for SAC, numbering about 2,500 employees. The remaining files contained the names and addresses of those employees grouped under different headings. There was therefore a duplication of names, resulting in approximately 4,394 names in total on the CD. The CD did not contain the names of any other employees of SAC who were not members of Unison, being either non-union employees or members of another Union.
[4] SAC responded by letter dated 25 September 2006, in the following terms:
"Dear Renee
Collective Grievance for Back Pay under the Equal Pay Act 1970
I refer to your recent correspondence regarding the above and would advise that having taken legal advice the Council is not prepared to accept the grievance in its present form.
The reasons for this are:
· You appear to have submitted your grievance based on a list of employees which seems to constitute a list of all UNISON members in the Ayr Branch, male and female, of whom many are unlikely to have an Equal Pay Issue.
· It is the Council's understanding that any grievance must refer to the specific group(s) of employees to whom the grievance applies together with details of 3 comparators for each staff group and grounds of comparison in each case.
· This has not been submitted to date. The grievance must identify the group of staff who claim to have a grievance and cite comparators and grounds. A grievance by an entire workforce is not acceptable.
· On these grounds it is our opinion that the grievance as it currently stands is therefore incompetent.
Additionally, with regard to your reference to 'work rated as equivalent' under the Job Evaluation Scheme I would refer you to my letter of 30th June 2006 which explained that no equal pay claim on these grounds can be considered until after the completion of the Job Evaluation exercise.
I would add, however, that the Council will, of course, be prepared to consider an Equal Pay grievance where this is submitted in an appropriate manner.
I would also advise that in response to your comment on the release of individual job evaluation scores it is my view that it would not be appropriate to issue this information in advance of the completion of the Job Evaluation exercise.
Should you require any further information please do not hesitate to contact me".
[5] Unison did not submit a supplementary (or a revised or a fresh) grievance letter. Some weeks later, on 7 November 2006, approximately 500 of the 2,500 Unison employees of SAC named on the CD lodged claims for equal pay with the Employment Tribunal.
Employment Tribunal[6] In a decision dated 17 June 2010, the Employment Tribunal concluded that it had jurisdiction to consider the claims, as the 500 Unison employees had complied with section 32 of the 2002 Act. In particular, the tribunal recorded at paragraphs 29 and 30:
"29. The third point that there was no Schedule attached to the letter of 11 August 2006 (4), contrary to what is suggested in its first paragraph, leads me on to the issue of whether it is permissible to treat the computer disc, containing the Schedule, as specification 'in writing' of the names of employees for the purposes of Regulation 9(1)(b) of the 2004 Regulations. It is not in dispute that the computer disc was delivered to the respondents along with UNISON's letter 11 August 2006 (4). It is also not in dispute that there was no hard copy of the Schedule provided by UNISON with their letter (4). The respondents do not dispute however that they were able to read the computer disc and, if required, print off its contents. It is clear from the terms of the respondents' letter of 25 September 2006 (5) that they were able to read and consider the contents of the computer disc. There is no suggestion that UNISON attempted to specify the name of the claimants to the respondents by any means of verbal communication. I am satisfied that in the above circumstances, albeit no Schedule was attached to the letter of 11 August 2006 (4/1) in the form of a hard copy, a Schedule was provided by means of the computer disc and the Schedule was a list of employees' names 'in writing'.
30. In the above circumstances, I am of the view that the present case can be distinguished from the case of The Highland Council v TGWU and others UKEATS/0048/07. In The Highland Council (supra), there was held to be non‑compliance with Regulation 9 of the 2004 Regulations because the trade union concerned did not provide the names of employees in their letter of grievance or otherwise. At best, they sought to rely upon reference to 'our women members' employed in certain categories of the respondents' workforce. This left the respondents in a position of being unable to identify employees covered by the collective grievance and whether subsequent Tribunal claims related to it or not. In the present case, the respondents have received a list of employee names, a number of whom have subsequently presented Tribunal claims. This was not the situation in The Highland Council case (supra)".
Employment Appeal Tribunal (EAT)[7] SAC appealed to the EAT. Interestingly, the point at issue in this appeal was not argued in any depth before the EAT. Ultimately, the EAT overturned the decision of the tribunal and ruled that the tribunal did not have jurisdiction to hear the claims, observing at...
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