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On 2nd May 2012, the Court of Appeal (Lord Justice Pill, Lord Carnwath and Lord Justice Patten) handed down its judgment in the matter of
Birmingham City Council v Parveen Akhtar and Others.
The 132 Respondents had all brought equal pay claims against the Appellant. As the claims were brought before April 2009, the Respondents had to have complied with s32 Employment Act 2002 (‘the 2002 Act’) in order for the Employment Tribunal to have jurisdiction to hear their claims. The issue was whether they had done so.
They were various ways in which s32 of the 2002 Act could have been complied with. This included following the standard grievance procedure set out in Part 2 Chapter 1 of Schedule 2 of the 2002 Act, the ‘modified procedure’ under Part 2 Chapter 2, or what was in effect a collective grievance process which was added by virtue of Regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (‘the 2004 Regulations’).
The Respondents were each represented by one of two unions. They had written letters which were either written and signed by the Union Representative, or signed by themselves and forwarded by the relevant Union to the Appellant. Each of the individual letters did not refer to more than one Respondent.
The ET had held that such letters satisfied what was required under the ‘modified procedure’. It also found that none of the documents complied with the collective grievance process. Upon appeal by the Appellant, the EAT found that the letters did not comply with the ‘modified procedure’ because that procedure included a requirement that the letter or statement must set out ‘the basis’ for the grievance and this had not been complied with. The EAT found that, under this procedure, sufficient information had to be provided to enable the employer to ‘respond substantially’. However, it held that they were collective grievances within the meaning of Regulation 9.
The Appellant appealed to the Court of Appeal against this finding that Regulation 9 had been complied with. The Respondents cross-appealed against the finding that the ‘modified procedure’ had not been satisfied. In broad terms, the Respondents’ stance had been that the relevant provisions ‘should be read and applied in the context of a dispute in which both unions and employers were well aware of the issues involved. Claims should not be defeated by technicalities’.
The Appellant’s position was that ‘the statutory language must not be strained or contorted’. In particular, on behalf of the Appellant it was submitted that Regulation 9 is not complied with unless the document relied upon makes it clear to the employer that it was a collective grievance document. It was argued that it was important to distinguish between a union that was acting as an agent for the employee in forwarding the grievance and one that was itself raising a collective grievance on behalf of the employees. The references to the modified procedure in the letters excluded the application of regulation 9 as it made clear that the intention was that these were individual grievances under the modified procedure.
Two of the Appellant’s arguments were accepted: firstly, that the reference to ‘regulation 9’ rather than paragraph 9 in one of the letters was a fortuitous slip which could not be relied upon to establish that regulation 9 applied in this case, and secondly that the word ‘otherwise’ in Regulation 9 did not eliminate the need to make it clear to the employer that the union was raising the grievance ‘on behalf of’ the employees.
However, Lord Justice Pill, with whom Lord Carnwath and Lord Justice Patten agreed, upheld that EAT’s conclusion on the Regulation 9 issue. Two factors were important to his decision:
- It would have been understood throughout the relevant dealings that the Unions were acting on behalf of the Respondents.
‘The documents were sent in the context of a long-standing dispute about equal pay involving issues which had been well-ventilated and which involved a large number of employees with whom the Unions were acting’.
They therefore held that to regard the documents as not complying with the Regulation 9 procedure would ‘be a more technical view of the procedure than the law requires or permits’. Furthermore, providing that the requirements have been complied with, it was not necessary to have intended to act under Regulation 9.
Although highlighting that it was not strictly necessary for the Court of Appeal to decide in light of the above judgment, Lord Justice Pill stated he was reluctant to disturb the findings of the EAT on the modified grievance procedure issue.
Louise Chudleigh, led by Paul Epstein QC, represented the Appellant.
Case report written by Rosalie Snocken