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 EWCA Civ 309, Court of Appeal - Betsan Criddle
In Suffolk Mental Health Partnership NHS Trust v. Hurst and Sandwell Metropolitan Borough Council v. Arnold, the Claimants have successfully resisted the employers’ appeals to the Court of Appeal on the question of what amounts to a grievance for the purposes of compliance with s.32 Employment Act 2002 in an equal pay claim. The Claimants were represented by Betsan Criddle of Old Square Chambers, led by Paul Epstein QC of Cloisters.
The conjoined appeals were reported at EAT level earlier this year at  IRLR 12. They concern whether a comparator must be identified in a written grievance, at least by job title, in order for that to be a valid grievance for the purposes of a subsequent equal pay claim to the ET.
This issue was the subject of conflicting decisions by two divisions of the EAT. In Highland Council v. TGWU and others IRLR 272 (in which Betsan Criddle and Robert Moretto of Old Square Chambers acted for the union backed Claimants), the EAT took the obiter view that a comparator had to be identified. In the present cases, the EAT took the view that a comparator did not have to be identified. By raising a complaint complaining of failure to pay equal pay, the employer is aware that the employee is complaining that she has not been paid a sum due to her and the reason why she is saying that. The employer knows that the allegation is that a comparable man doing equal work to that of the Claimant is receiving more than her and ought not to be. That satisfies the definition of a grievance for the purposes of the Employment Act.
In view of the importance of the issue to the tens of thousands of equal pay claims proceeding in the Employment Tribunals, the cases were expedited for hearing to the Court of Appeal.
The Court of Appeal in a judgment handed down this morning (7 April 2009) upheld the judgment of the EAT that a comparator does not have to be identified. The Court held that requiring particularisation in advance of the negotiation encouraged by statute, either through an individual grievance meeting or through collective discussions, would be to create a substantial obstacle to claims, which could not have been intended by Parliament. It was therefore sufficient to state that a Claimant had an equal pay complaint for the purposes of compliance with the statutory grievance procedure.