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 ICR 1087, Employment Appeal Tribunal - Michael Ford QC
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The appellants (X) appealed against a decision made in the course of their equal pay claim against the respondent local authority.
A number of equal pay claims had been brought against the local authority and the tribunal determined that in some 250 cases the claimants would not be permitted to advance claims based on comparators different from those identified in their collective grievances. The decision meant that 46 of the claims could proceed no further, no comparator having been identified in the grievance. For the remainder, the decision imposed such practical limitations that their value was significantly diminished. In reaching its decision the tribunal had not seen the EAT decision in Sefton MBC v Hincks  I.C.R. 1357, in which claimants had been permitted to add claims identifying different comparators from those identified in their grievances. Instead, it relied on the conflicting EAT decision in Dundee City Council v McDermott  I.C.R. 606, a decision that was subsequently overturned by the Inner House of the Court of Session in Amery v Perth and Kinross Council  CSIH 11, 2012 S.L.T. 395.
X submitted that McDermott had been wrongly decided and the tribunal had erred in relying on it.
HELD: The tribunal had plainly erred in law in following McDermott, McDermott considered, Amery followed. However, X's appeal would have been allowed even without the affirmation of the Inner House's decision, Suffolk Mental Health Partnership NHS Trust v Hurst  EWCA Civ 309,  I.C.R. 1011 and Hincks followed. Grievance procedures and tribunal claims addressed two separate matters. The latter addressed the legal consequences of an employer's acts or omissions, while the former had a broader function and were not properly to be seen as a step in litigation. The purpose of stating a grievance was to initiate a discussion with the employer, and many of the matters discussed would never be litigated. The purpose of facilitating discussion was essentially a practical one, and the legislation had to be interpreted in such a way as to avoid undue technicality and unintended consequences. A grievance in the context of the Equal Pay Act 1970 was a complaint about discrimination in relation to pay. Viewed practically, an employee might recognise that she was being paid less than a man, but where the man was not employed on the same job as her, equivalence might not be easy for her to ascertain. The employer controlled its pay policies, which might not always be transparent, and it ought to be able to explain them. It was open to the employer to raise the defence that a pay disparity was due not to sex but to a genuine material factor. That might not have been apparent to the employee before the grievance. Similarly, in a collective grievance, discussion might lead to the identification of comparators, which might not have been possible for the complainants at the start of the grievance process. To hold a claimant to an initial simple protestation that her pay was less than that of a particular man would risk tying her to her initial ignorance of the true facts and would prevent her from developing her claim. The EAT in McDermott had drawn support from the decision in Brett v Hampshire CC , in which it had been said that each claim by reference to a different comparator was a different claim. However, Brett was concerned with the modified grievance procedure, where, unlike in the standard grievance procedure, the claimant had to set out the nature of the comparison so that it could act as the basis for the claim, Brett distinguished. For the purposes of the standard grievance procedure, the question for the tribunal was whether there had been an opportunity for the employer and employee to discuss the subject matter of the claim. While the complaint in the grievance had essentially to be the same as the tribunal claim, the law did not require a case to be set in stone, and a claim could be amended. The word "correlation" was potentially dangerous if it suggested the need for a greater correspondence than that required by the underlying policy of initiating a discussion and providing an opportunity for resolution of the complaint. It was unlikely that a claimant who had a genuine grievance, opened it for discussion, then later modified her claim in the light of information obtained as a result of that discussion, would not be presenting essentially the same grievance. Ultimately, whether the claim could be traced back to the initial complaint would be a question of fact and degree, Highland Council v TGWU/UNISON  CSIH 38, 2008 S.C. 603 followed. However, an employer would have to produce cogent evidence that the claim was in fact different before it would be barred for non-compliance with the requirements of the grievance procedure. The control test identified in Hurst was indicative of the sort of material that might justify such a finding, as were the observations of Burton J in Shergold v Fieldway Medical Centre  I.C.R. 304, Shergold followed (see paras 43, 46, 48, 50-56 of judgment).