Victoria Avery And Others+c Breen And Others V. Perth And Kinross Council+dundee City Council
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Emslie,Lord Osborne |
| Neutral Citation | [2012] CSIH 11 |
| Published date | 10 February 2012 |
| Date | 10 February 2012 |
| Court | Court of Session |
| Docket Number | XA15/11 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Emslie Lord Osborne | [2012] CSIH 11 XA15/11 and XA16/11 OPINION OF LADY PATON in appeal under section 37(1) of the Employment Tribunals Act 1996 by VICTORIA AMERY and others, C BREEN and others Claimants and Appellants; against PERTH & KINROSS COUNCIL and DUNDEE CITY COUNCIL Respondents: _______ |
Claimants and First Appellants (Unison and Unite claimants): Summers QC; Thompsons, Solicitors
Claimants and Second Appellants (GMB claimants): Shead; Digby Brown
Respondents: Truscott QC; MacRoberts LLP
10 February 2012
Employment law: equal pay claims and the naming of comparators[1] Employees of Perth & Kinross Council and Dundee City Council presented equal pay claims to two Employment Tribunals. They had already gone through the mandatory grievance procedure introduced by section 32 of the Employment Act 2002 and intended to encourage negotiation and settlement of claims without resort to tribunals and courts.
[2] As was noted in the decisions of the Employment Tribunals (paragraphs 7 and 10 respectively):
"The agreed facts were that (1) all the claimants had submitted grievances which stated they were claiming equal pay. (2) In certain grievances that was all that was said and no comparators were named. (3) In certain grievances, comparators were named, and in certain cases the comparators mentioned in the subsequent claim form [ET1] were materially different from the comparators named in the grievance."
[3] At pre-hearing reviews before the Employment Tribunals, each Council argued that certain grievances failed to satisfy the requirements of the statutory procedure, in particular paragraph 6 of Schedule 2 to the 2002 Act. Each Council accepted that "where the grievance stated no more than that the claimant was complaining about equal pay, then the claimant had complied with the requirement in paragraph 6 of Schedule 2 in respect of any tribunal claim about equal pay" (paragraph 8 of the decision of the Employment Tribunal). However the Councils contended that where grievances named comparators but were then followed by forms ET1 specifying different comparators, the grievance underlying the form ET1 was not essentially the same as the earlier intimated grievance. As a result the employee had not complied with the statutory procedure, and in particular had failed to satisfy the correlation principle namely that:
"... the complaint to the employer must be essentially the same complaint as is subsequently advanced before the tribunal."
(Canary Wharf Management Ltd v Edebi [2006] ICR 719, Elias J at paragraph 21). In those claims therefore, it was contended that the tribunals had no jurisdiction.
[4] The Employment Tribunals considered the Councils' arguments, and concluded that all the claims satisfied the statutory requirements, that none was excluded from the tribunal's jurisdiction, and that accordingly all the claims should proceed to a hearing on the merits.
[5] The Councils appealed to the Employment Appeal Tribunal (EAT). In a composite decision dated 11 January 2011, the EAT recorded the situation as follows:
"5. The issue that gives rise to this appeal was determined by the Employment Tribunal at pre hearing review. Parties agreed a statement of relevant facts for the purposes of the hearings. In both judgments the Employment Judge records that parties were agreed that:
'In certain grievances comparators were named and in certain cases the comparators mentioned in the subsequent claim form were materially different from the comparators named in the grievance.'
6. In light of the issue that arises, it should be noted that the agreement was that the comparators were materially different; it was not agreed that the grievances were materially different from the subsequent complaints presented to the Employment Tribunal.
7. The Employment Tribunal did not carry out any assessment of the differences between the grievances and the subsequent forms ET1. The hearings involved the presentation of submissions on the issue of whether or not the Employment Judge could, at that stage, conclude that section 32 of the 2002 Act had been complied with.
8. Before the Tribunal, [the Councils'] position was that where it was the case that there was a material difference between the Claimants' grievance and the subsequent complaint, there had been no compliance with section 32 of the 2002 Act. That being so, the Tribunal would require to fix a further hearing for the purpose of a case by case comparison of the grievances and subsequent claim forms.
9. The Claimants' position was, shortly put, that no such exercise required to be carried out because their grievances intimated that they were claiming equal pay and their subsequent complaints all contained equal pay claims."
[6] The EAT ruled that the decision of the Inner House in Cannop v Highland Council 2008 SC 603 was binding, and remitted the claims challenged to the same Employment Tribunal "to consider whether in the case of each claimant the grievance underlying the form ET1 was essentially the same as the earlier intimated grievance" (paragraph 41).
[7] The employees appealed to the Court of Session.
Statutory provisions[8] Section 32 of the Employment Act 2002 provides inter alia:
"(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if -
(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and
(b) the requirement has not been complied with."
[9] The requirements referred to in section 32 are set out in Part 2 of Schedule 2 to the Act. The relevant requirement in this case is the "standard procedure" in Chapter 1 of Part 2, which provides inter alia:
"Step 1: statement of grievance
6. - The employee must set out the grievance in writing and send the statement or a copy of it to the employer.
Step 2: meeting
7. - (1) The employer must invite the employee to attend a meeting to discuss the grievance.
(2) The meeting must not take place unless -
(a) the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6, and
(b) the employer has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision as to his response to the grievance and notify him of the right to appeal against the decision if he is not satisfied with it."
[10] Failure to comply with Step 1 has the major consequence that the employee is barred from presenting a claim to a tribunal: section 32 of the 2002 Act. Failure to comply with Step 2 has the significant but less disabling consequence that the compensation awarded may be reduced: section 31 of the 2002 Act.
Conflicting lines of authority[11] The legislation referred to above led to conflicting lines of authority, as outlined below.
(a) Grievances where no comparators are named
[12] In 2008, the EAT in Scotland concluded that a written statement of grievance about equal pay which failed to name a comparator did not comply with the statutory requirements. As was explained in Highland Council v TGWU and others (No 1) [2008] IRLR 272 at paragraphs 31-32:
"31 ... the exercise of comparison is so fundamental to a complaint that an employer has failed in his equal pay obligations that there must be some specification of comparator, at least by reference to job or job type, in the grievance document. Without that, the employer cannot be expected to appreciate that a relevant complaint is being made. It cannot be enough to state that an equal pay claim is being made without saying more. That would not amount to a relevant complaint of breach of the 1970 Act requirements....
32 ...The employer is entitled to know the essence of what it is that he has to respond to. He is entitled to approach the fixing of the stage two meeting, including, for instance, the identification of those who should be present at the meeting, on the basis of such knowledge, all with a view to trying to resolve the issue. He is not, in my view, being provided with that material if all he is being told is that his employee has an equal pay complaint. To regard that as enough would be to reduce the stage one grievance communication to a relatively meaningless level of generality or tokenism. That would not accord with a statutory scheme that is intended to try and bring about an efficient and effective practical result."
[13] That view was, however, expressly not approved by the Inner House of the Court of Session at paragraph [30] of Cannop v Highland Council 2008 SC 603. Further, the Court of Appeal in England took a different approach in Suffolk Mental Health Partnership NHS Trust v Hurst and others; Arnold and others v Sandwell Metropolitan Borough Council [2009] ICR 1011 (variously referred to as "Suffolk", "Hurst", or "Sandwell"). There, the Court of Appeal in paragraphs 49, 51, 58, 83, and 95, approved the opposite conclusion reached by Elias J, President of the EAT in England, who, while acknowledging and sympathising with the careful reasoning of the EAT in Scotland, stated:
"62......In my judgment, it is enough for the claimant to indicate that he or she is pursuing an equal pay claim. That is compatible with the definition of a 'grievance'. The employee has made it plain that she objects to action taken by the employer, namely the failure to pay the sum due to her, and by identifying the claim as an equal pay claim she is also revealing the reason why she is saying that. She is not, for example, contending that there has been a failure to pay as a result of some mistake or because overtime hours have not been counted, or because her rate is below the minimum wage, or anything of that nature. The employer knows that the allegation is that a...
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