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 ICR 813, Employment Appeal Tribunal - Louise Chudleigh
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On a proper construction, the Employment Act 2002 (Dispute Resolution) Regulations 2004 reg.9 required that at least one of the employees identified to the employer in writing by the union representatives must be a claimant. The words "the employee having the grievance" in reg.9(1)(b) meant the employee who later made a claim.
The appellant employer (X) appealed against a tribunal's decision that it had jurisdiction to hear claims from 21 claimants alleging breach of the Employment Equality (Age) Regulations 2006. The claims, which were lodged on January 25, 2007, arose out of an agreement reached between X and a trade union regarding the closure of X's final salary pension scheme. Under the agreement compensation was payable to those employees ceasing to be members of the scheme. The sum was calculated using a matrix which took account of age and years of pensions contributions. Payments pursuant to the agreement were made on October 27, 2006. On December 14, the union representatives gave X a formal grievance letter on behalf of 22 named workers, seven of whom subsequently lodged claims. At some point after that, but before December 27, X received around 20 questionnaires issued under the 2006 Regulations. Many of the signatures were indecipherable, but the tribunal was satisfied that the names of another three claimants could have been gleaned from the questionnaires. On January 31, X was given a definitive list containing 25 names. The list did not include many of those named in the December 14 letter. The tribunal concluded that the December 14 letter was a collective grievance, and that the Employment Act 2002 s.32 did not apply to grievances governed by the Employment Act 2002 (Dispute Resolution) Regulations 2004 reg.9. It held that s.32(3) of the Act only engaged when there was an obligation to follow the statutory grievance procedure set out in Sch.2 of the Act, so that it applied where Sch.2 para.6 must be followed but not where a collective procedure applied. The tribunal held that if it was wrong on that point, then the three individuals who to X's knowledge had lodged questionnaires were also caught, because they were clearly associated with the grievance more than 28 days before the claim forms were lodged. The tribunal also found that, independently of reg.9 of the 2004 Regulations, the two representatives could be seen as agents for those in whose names the grievance had been lodged. X argued that (1) the tribunal had erred in concluding that the provisions of s.32 were not material; on the contrary, the section required the 28-day moratorium to allow the grievance procedure to operate and, on a proper construction of reg.9, only the seven specified in the letter of December 14 had complied with the terms of that provision within the required time frame; (2) even if the agency analysis could be adopted, that did not assist the three whose identity was established only from the questionnaire since that was insufficient evidence to infer that they had made the union representatives their agents for the purpose of lodging the grievance; (3) the cause of action had accrued before the 2006 Regulations came into force.
HELD: (1) The tribunal's conclusion that the time limits in s.32(3) did not apply was misconceived. Regulation 9 provided an alternative way of complying with Sch.2 para.6. It meant that a claimant whose grievance was lodged through a reg.9 procedure was deemed to have complied with Sch.2 para.6 and therefore could satisfy s.32(3)(a); but the obligation to satisfy s.32(3)(b) remained. The fact that s.32(3) did not specifically refer to the collective grievance mechanism, or that no time limits were fixed in reg.9, was irrelevant. On a proper construction, reg.9 required that at least one of the employees identified to the employer in writing by the union representatives must be a claimant. The words "the employee having the grievance" in reg.9(1)(b) meant the employee who later made a claim. Accordingly the representative must identify in writing the employees on whose behalf he was raising the grievance, and that must mean all the employees including those raising a statutory grievance who subsequently became claimants. Regulation 9 required the union representative to identify each party who was to be treated as having complied with the statutory grievance procedure, and s.32(3)(b) required that that must be done within the statutory time frame. It followed that the seven who were identified fell within the terms of the regulation, but not those whose names were only identified after December 27. (2) There was no proper basis on which the three who lodged their questionnaires before December 27 could be treated as being part of the collective grievance; they could not be said to be unilaterally associating themselves with the collective agreement when the union representative taking responsibility for pursuing the grievance had never identified them. However, the tribunal was entitled to find that the union representatives were acting as agents for the three individuals and had lodged a grievance on their behalf. A reasonable employer would appreciate that the three would have anticipated that their claims would be dealt with through the collective process. There was no reason why the grievance already lodged by the union could not be treated as the relevant copy of the grievance for the purposes of Sch.2 para.6, Canary Wharf Management Ltd v Edebi (2006) ICR 719 EAT considered. Therefore, the tribunal only had jurisdiction to hear claims from the 10 claimants who had been identified satisfactorily by December 27. (3) The cause of action arose after the 2006 Regulations came into force, when the actual payments were made, Gloucester Working Men's Club & Institute v James (1986) ICR 603 EAT applied.