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 ICR 1150, Employment Appeal Tribunal (Scotland) - Ian Truscott QC, Simon Gorton QC
A trade union, which wrote to a local authority to complain about pay inequalities suffered by its members, had not lodged a collective grievance for the purposes of the Employment Act 2002 (Dispute Resolution) Regulations 2004 reg.9 because it had not named the members to which its letter referred. The naming of names was not a mere technicality, but was a clear statutory requirement.
The appellant local authority appealed against an employment tribunal's decision that the respondent trade unions (T) had complied with the statutory grievance procedure on behalf of their members. Prior to the coming into force of the Employment Act 2002 (Dispute Resolution) Regulations 2004, T had been involved in negotiations with the local authority over pay inequalities. The local authority had agreed to carry out job evaluations as part of a new pay and grading structure, but had failed to carry them out within the agreed time. T had written three letters to the local authority complaining about lack of progress and indicating that equal pay claims may follow. The letters identified classes of workers who might make a claim, but did not name them. A number of equal pay claims had subsequently been issued and the local authority had asserted that the tribunal had no jurisdiction to hear them, as the claimants had failed to comply with the statutory grievance procedure. The tribunal had found T's letters to be more than a mere part of the collective bargaining procedure and to constitute the intimation of grievances for the purposes of reg.18 of the Regulations. It found that there was no need for the claimants to comply with the statutory grievance procedure, and that it did not matter that T's correspondence had not named individual claimants. The tribunal had also found that the local authority was being unduly technical and pernickety in its approach to the Regulations. The local authority submitted that identification of the employee was an irreducible minimum required by both the transitional provisions and the substantive regulations. The local authority argued that T's letters did not indicate that T was authorised to act as agents for their members, and the claimants had therefore failed to comply with the statutory procedure.
HELD: (1) The fundamental issue to be determined by the employment tribunal had been whether it had had, pursuant to the Employment Act 2002 s.32, jurisdiction to entertain the claims. Only then could it consider whether the statutory grievance procedure had been complied with. It had failed to provide an answer to the jurisdiction issue in terms. It ought to have approached the matter on the basis that before it could properly and competently adjudicate, an individual had to present a relevant complaint in accordance with statutory requirements. It had instead approached the matter on the basis that it was dealing with a large, general equal pay complaint where parties were, as yet, unidentified. Regulation 18 required a complaint to have emanated from a claimant and to relate to action being taken or going to be taken by him. That requirement could be met by an agent acting with authority to do so, but a general complaint by an organisation such as a trade union not acting as an agent could not fall into that category, regardless of how much that organisation had the interests of its members at heart. On the facts, T's correspondence amounted to an attempt to perform a collective bargaining exercise and in none of its letters had T stated that they were writing in the capacity as agents for their members, Holland v London Society of Compositors (1924) 40 TLR 440, Young v Canadian Northern Railway Co (1931) AC 83 PC (Can) and Chappell v Times Newspapers Ltd (1975) 1 WLR 482 CA (Civ Div) considered. The tribunal had failed to make any finding that T had sufficient authority before considering the separate issue of whether there was a need to identify individual claimants. The letters could not be construed as having been written by T in an agency capacity and the tribunal had therefore not had authority to hear the case unless reg.9 of the Regulations applied and had been complied with. Regulation 9 only applied where at least two names had been specified in the grievance letter and the tribunal had been correct to find that reg.9 had not been complied with. The tribunal had been wrong to regard the naming of names as being a mere technicality. It was a clear statutory requirement, Alitalia Airport SpA v Akrif (2008) ICR 813 EAT considered. (2) The tribunal had been wrong to criticise the local authority for raising issues concerning the need for identification of claimants. That was especially so as it was a public body with a duty to protect the public purse. It had also been wrong to interpret authorities as relaxing the requirements of Sch2. para.6 of the 2002 Act, Shergold v Fieldway Medical Centre (2006) ICR 304 EAT considered.