Suffolk Mental Health Partnership NHS Trust v Hurst & Ors

These are appeals from decisions of Elias J sitting as President of the Employment Appeal Tribunal (“the EAT”). On 6 November 2008, sitting alone, Elias J gave judgment in three cases which it had been ordered should be heard together on appeal from Employment Tribunals. Giving judgment, Elias J stated that “the appeals raise yet again the issue of the statutory grievance procedures [under the Employment Act 2002 (“the 2002 Act”)] and whether the [Employment] Tribunal properly had jurisdiction to hear various equal pay claims made by the claimants in each of those cases”. The judge found that the relevant Employment Tribunals had jurisdiction to hear each of the equal pay cases raised by the claimants. In two of the cases, the unsuccessful employers, Suffolk Mental Health Partnership NHS Trust (“the Trust”) and Sandwell Metropolitan Borough Council (“Sandwell”) and their co-appellants, who are the governing bodies of educational establishments, appeal to this court, by permission of Elias J.

The issues in the appeals were identified in advance of the EAT hearing and approved by the EAT:

“In relation

(1)

To each individual grievance and

(2)

Each collective grievance, whether there was compliance with the requirements of section 32 of the 2002 Act.

In particular:

(a)

Was each such grievance a valid grievance for the purposes of section 32?

(b)

Did each such grievance contain essentially the same complaint as the subsequent claim?” [the correlation principle]

Section 32 provides, in so far as is material:

“(2)

An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if –

(a)

it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and

(b)

the requirement has not been complied with.

(3)

An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if –

(a)

it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 has been complied with, and

(b)

less than 28 days have passed since the day on which the requirement was complied with.

(6)

An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2) to (4), but only if –

(a)

the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings, or

(b)

the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under section 7 of the Employment Tribunals Act 1996 (c 17) (employment tribunal procedure regulations).

(7)

The Secretary of State may for the purposes of this section by regulations –

(a)

make provision about the application of the procedures set out in Part 2 of Schedule 2;

(b)

make provision about what constitutes compliance with paragraph 6 or 9 of that Schedule;

(c)

make provision about circumstances in which a person is to be treated as having complied with paragraph 6 or 9 of that Schedule;

(d)

make provision for paragraph 6 or 9 of that Schedule to have effect in such circumstances as may be specified by the regulations with such modifications as may be so specified.”

Section 2 of the Equal Pay Act 1970 (“the 1970 Act”) is a jurisdiction to which section 32 applies (Schedule 4 to 2002 Act).

Schedule 2 to the 2002 Act sets out statutory dispute resolution procedures and under the heading “Grievance Procedures” provides:

“CHAPTER 1

STANDARD PROCEDURE

Step 1: statement of grievance

6.

The employee must set out the grievance in writing and send the statement or a copy of it to the employer.

Step 2: meeting

7.-(1) The employer must invite the employee to attend a meeting to discuss the grievance.

(2)

The meeting must not take place unless –

(a)

the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6, and

(b)

the employer has had a reasonable opportunity to consider his response to that information.

(3)

The employee must take all reasonable steps to attend the meeting.

(4)

After the meeting, the employer must inform the employee of his decision as to his response to the grievance and notify him of the right to appeal against the decision if he is not satisfied with it.

Step 3: appeal

8.-(1) If the employee does wish to appeal, he must inform the employer.

(2)

If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3)

The employee must take all reasonable steps to attend the meeting.

(4)

After the appeal meeting, the employer must inform the employee of his final decision.”

Paragraph 9 of schedule 2 appears under the heading “Modified Procedure”. That procedure can apply where the employee has ceased to be employed by the employer (regulation 6 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (“the 2004 Regulations“) made pursuant to the 2002 Act). Paragraph 9 differs from paragraph 6 in that the employee must set out, in step 1, in writing, not only the grievance but “the basis for it”, a requirement which does not arise under the standard procedure until step 2.

Regulation 9 of the 2004 Regulations provides a separate procedure for collective complaints:

“(1)

Where either of the grievance procedures is the applicable statutory procedure, the parties shall be treated as having complied with the requirements of the procedure if a person who is an appropriate representative of the employee having the grievance has - 

(a)

written to the employer setting out the grievance; and

(b)

specified in writing to the employer (whether in setting out the grievance or otherwise) the names of at least two employees, of whom one is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance.”

The Regulation provides an alternative way of complying with paragraph 6:

“A claimant whose grievance is lodged through a regulation 9 procedure is deemed to have complied with paragraph 6 and therefore can satisfy section 32(3)(a); but the obligation to satisfy 32(3)(b) remains.”

(Elias J, President, in Alitalia Airport SpA v Akhrif & Ors [2008] ICR 813, at paragraph 34). Thus, subject to the passage of 28 days, a collective complaint can be presented to the Employment Tribunal without the meetings contemplated in paragraphs 7 and 8 of schedule 2. That is common ground.

“Grievance” is defined in regulation 2 of the 2004 Regulations as meaning “a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him”.

Because the statutory grievance procedure will take time, it is provided by regulation 15 of the 2004 Regulations that the normal time for presenting a complaint to an Employment Tribunal is extended for a period of 3 months beginning with the date after the day on which it would otherwise have expired.

Regulation 7 of the 2004 Regulations specifies circumstances in which the parties are treated as complying with the grievance procedures. Regulation 11 also sets out circumstances in which the statutory procedures do not apply or are treated as being complied with where the appropriate statutory procedure has not been commenced or a subsequent requirement of the procedure has not been complied with. These regulations are made pursuant to section 32(7) of the 2002 Act (set out above) and are plainly intended to protect employees from the full rigours of compliance with the provisions of sections 32(2) to (4). Under regulation 11(3) the circumstances are:

“(a)

the party has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in a significant threat to himself, his property, any other person or the property of any other person;

(b)

the party has been subjected to harassment and has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in his being subjected to further harassment; or

(c)

it is not practicable for the party to commence the procedure or comply with the subsequent requirement within a reasonable period.”

Section 31 of the 2002 Act provides for the reduction of an award to an employee by from 10% to 50% (sub-section 2) and an increase in an award from 10% to 50% (sub-section 3) where “the statutory procedure was not completed before the proceedings were begun” and where the failure was that of the employee or the employer, respectively. The reduction or increase need not apply if there are exceptional circumstances that would make such course unjust or inequitable (sub-section 4). That sanction applies only on a failure to complete the procedure. It does not arise if, by virtue of the provisions of section 32(6)(b), the Tribunal is prevented from considering the employee’s complaint.

The 1970 Act is “an Act to prevent discrimination, as regards terms and conditions of employment between men and women”. It gives effect to the requirement stated in the side-heading to section 1: “Requirement of equal treatment for men and women in same employment”. Section 1(1) provides, in so far as is material, that if the terms of a contract under which a woman is employed do not include an equality clause they shall be deemed to include one. Section 1(2) defines an equality clause as a provision which relates to terms of a contract under which a woman is employed. It covers a number of situations including (a) where the woman is employed on like work with a man in the same employment, (b) where the woman is employed on work rated as equivalent with that of a man in the same employment and (c) where a woman is employed on work which is, in terms of the demands made on her (for instance under such headings as effort, skill and decision), of equal value to that of a man in the same employment.

Section 2(1), which in this respect must be read subject to section 32 of the 2002 Act, provides:

“Any claim in respect of the contravention of a term modified or included by virtue of an equality clause, including a claim for arrears of remuneration or damages in respect of the contravention, may be presented by way of a complaint to an [Employment Tribunal].”

It is not necessary to consider limitation procedures in detail, but, in what is defined as a standard case, proceedings must be instituted within 6 months of the last day on which the woman was employed in the employment (section 2ZA of the 1970 Act). The arrears date is the date falling 6 years before the day on which the proceedings were instituted (section 2ZB).

Section 7B of the 1970 Act, which took effect on 6 April 2003, requires the appropriate Minister by order to prescribe forms by which a complainant may question an employer on any matter which is or may be relevant “with a view to helping a complainant to decide whether to institute proceedings and, if she does so, to formulate and present her case in the most effective manner” (section 7B(2)).

That procedure may be initiated either before or after the presentation of a grievance under section 32 of the 2002 Act. Regulation 14 of the 2004 Regulations provides that questions to respondents shall not constitute a statement of grievance.

Schedule 6 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (“the 2004 Procedural Regulations”) provides procedures for equal value claims. Paragraph 3 confers general powers to manage proceedings including, at 3(1)(c), a power to require a party to provide information. Paragraph 4(1) makes provision for a “stage 1 equal value hearing” before the Tribunal when there is a dispute as to whether any work is of equal value as mentioned in section 1(2)(c) of the 1970 Act. Paragraph 5(1)(a) provides, in so far as is material:

“At a stage 1 equal value hearing a Tribunal shall, unless it considers it inappropriate to do so . . . order that –

(a)

Before the end of the period of 14 days after the date of the stage 1 equal value hearing the claimant shall:

(i)

Disclose in writing to the respondent the name of any comparator, or, if the claimant is not able to name the comparator he shall instead disclose such information as enables the comparator to be identified by the respondent;

. . .”

Three claimants are now involved. It is common ground that Mrs Taylor’s grievance was to be treated as an individual grievance and those of Ms Hurst and Ms Thompson as a collective grievance. The relevant statement for section 32(2) purposes is agreed to be that of Mrs Taylor’s grievance, set out in UNISON’s letter of 2 November 2006. The other documents were in essentially the same terms:

“This letter represents a grievance lodged by us as the recognised trade union on behalf of those members, your employees, who are entitled to back pay under the Equal Pay Act 1970. . .

The grievance relates to back pay under the Equal Pay Act 1970 arising out of our members’ employment with you prior to the introduction of Agenda for Change.

Our members are doing work which has been rated as equivalent under the Agenda for Change job evaluation, or alternatively whose work is of equal value, to other of your employees and also other employees employed by other NHS employers ("the comparators"). The comparators are paid more than our members.

Our members work in groups who are predominantly female and/or the comparators work in groups that are predominantly male. As such they are entitled to equal pay with their comparators, unless you can prove that there is a valid objective reason for paying them less than their comparators. In our view there is no valid objective reason.

Our members are therefore entitled to back pay in respect of the difference in pay between them and their comparators, for up to 6 years.

Please may we have your proposals in writing in settlement of this issue. At this stage we are simply seeking acknowledgement in principle that you will pay back pay owing to them under the Equal Pay Act.”

By letter of 5 December 2006, the Trust replied. Having referred to an alleged confusion in the names on the schedule of complainants, the Trust added:

“. . . and the remaining names have varying roles within the organisation which makes comparison difficult. Also you have not cited any individual comparators.

The Trust’s policy in equal pay matters following Agenda for Change is for an individual staff member, or a group of staff working in the same role to write in with a formal grievance citing their comparator. A grievance panel will consider if this is a justifiable claim and if so will deal with it in a fair and consistent manner. Please advise your members to write to me formally so that we can resolve their concerns as quickly as possible.”

In a further letter of 3 April 2007, the second of those paragraphs was repeated. It was also stated:

“Unfortunately, I am unable to let you have our proposals as you have not cited any individual comparators.”

The claim form subsequently presented to the Employment Tribunal on 10 August 2007 stated that the claims were under the 1970 Act and Article 141 of the Treaty of Rome. Comparators were identified in this way:

“The comparators are men employed in jobs which are or were mainly done by men, which are now rated as equal or are rated lower than the current grade of the claimants but prior to Agenda for Change were paid more than the claimant (sic). The claimants are female who work in predominantly female groups.

. . .

The comparators will be named after disclosure of information or documents by the respondents.”

The Employment Tribunal found that there had been compliance with paragraph 6.

A questionnaire had been submitted by the claimants on 10 March 2007 and was returned on 3 April 2007. The questions asked whether the claimants’ jobs had been evaluated under the Agenda for Change job evaluation and made several other references to Agenda for Change. Questions were asked in relation to a series of job categorisations including, by way of example, estates support workers and medical technicians. In reply, the Trust made several references to the absence of comparators. They stated:

“As we have no male comparator we believe that no discrimination has occurred.”

It was also stated that the three complainants had three very different roles and responsibilities and a disproportionate effort would be required to give the details requested.

Agenda for Change is described in the summary of a later Department of Health document entitled “NHS Pay Modernisation in England: Agenda for Change”. It is stated:

“Implemented between December 2004 and December 2006, the objective of the Agenda for Change programme was to reform and standardise the pay and conditions of around 1.1 million staff in the NHS in England, representing a pay bill in excess of £28 billion a year in 2007/08.”

One of the objects is stated to have been to “pay fairly and equitably for work done”. It is stated that “there was widespread agreement within the NHS that a new pay system was needed”. A key principle behind Agenda for Change was stated to be “to introduce a system that could pay staff on a consistent basis by reference to the work they do and the skills and knowledge they apply”.

Lodged with the court is a list of the substantial number of Sandwell employees who are respondents to this appeal.

The claimants’ union, UNISON, wrote a letter on 21 September 2006, which is claimed to comply with section 32 of the 2002 Act. It was in these terms:

“I write on behalf of the members detailed in the attached schedule who are employed as [various posts within the Council are referred to] by Sandwell MBC in accordance with Section 32 Employment Act 2002 to raise a formal grievance under the Employment Act 2002 (Dispute Resolution) Regulations 2004.

These members have suffered a shortfall in terms of the remuneration that they have received for their work, compared to that of male comparators. Under the Equal Pay Act 1970 these members are entitled to recover that shortfall, backdated to at least 6 years with interest.

Please note that this letter is written in accordance with Regulation 9 of the above mentioned regulations and therefore relieved of the need to take any further steps under the Statutory Grievance Procedure.”

An individual statement was submitted by Mrs Morris who included the following, at paragraph 5:

“The Claimant contends that it is not necessary to name comparators as the essence of the entitlements is the job that the employee does and the fact that it is only jobs performed principally by men that receive these entitlements. However, the Claimant will in particular rely on all the Respondent's male workers who the Claimant contends carry out work of equal value to her. The Claimant invites the respondent to provide details of the same.”

The claims to the Employment Tribunal identified comparators by naming particular posts and by identifying salary bands for both claimants and comparators. Having failed to take a point on section 32 in some of the cases, the employers were allowed, at a pre-hearing review, to amend their response. The Employment Tribunal, relying on the decision of the EAT in Highland Council v TGWU & Others [2008] IRLR 272, held that the claimants had not complied with the requirement in section 32(2) and that the claims should be struck out.

Elias J held that in both the Suffolk and Sandwell cases, the claimants had complied with section 32(2) and that the Employment Tribunal had jurisdiction to hear all the equal pay cases raised by these claimants. He stated, at paragraph 13:

“Rarely can legislation have been so counter-productive. Provisions designed to reduce tribunal disputes have spawned satellite litigation in which arcane and complex points of law have been argued, frequently . . . remote from reality . . .”

I respectfully agree both with Burton J’s view that the purpose of the legislation was to encourage conciliation and settlement rather than the precipitation of proceedings (Shergold v Fieldway Medical Centre [2006] ICR 304 considered at paragraph 53 post) and with Elias J’s identification of one of its consequences. With a view to achieving the stated purpose, and at the same time protecting both employer and employee, the procedures involved, with their possible variations and options, are complex. Inevitably they give rise to legal issues which, it appears, parties, and in particular employers, have not been reluctant to raise.

Both Miss Ellenbogen for the Trust and Mr Stafford QC for Sandwell accept that suspicion by a potential claimant of a breach of the 1970 Act is sufficient to initiate a complaint. Their submissions were consistent with each other but deserve to be set out in some detail.

Miss Ellenbogen relied on the evidence of Ms Brenda Holliday, a specialist human resources adviser employed by the Trust. Ms Holliday claimed that the letter of 2 November 2006 is meaningless in terms of giving any assistance to the Trust in understanding the alleged grievance. The comparators were not identified. They could theoretically be anyone employed by the National Health Service (“NHS”). It was impossible for the Trust to have any reasonable understanding of the alleged grievance. The Trust has been given no realistic opportunity even to consider the purported grievances.

Ms Holliday also said that there was absolutely no reason why the equal pay grievance could not have been pursued through the written Grievance Procedure which applied to all employees of the Trust. The relevant procedure was approved by the Trust Board in November 2004. The grievance procedure pro forma, which forms a part of the document, provided the headings:

“My grievance is (please give full details including dates, times, names of people involved etc)”

and

“I would like it resolved as follows.”

(I interpose that the particulars suggested are hardly apt for an equal pay grievance).

Miss Ellenbogen submitted that the requirement to “set out the grievance in writing” is a requirement to tell the employer enough about the grievance to make possible meaningful consultation about it. To identify the statute under which the complaint is to be made is insufficient, as is a generic description such as equal pay. If that was enough, it would reduce the grievance procedure to nothing. An irreducible minimum is required to be present in the statement of grievance if it is to have the substantive value contemplated by the statute.

The letter of 2 November 2006 failed to comply, it is submitted. It was too vague and amorphous. Comparators were not identified. A general reference to comparators who are “paid more” was defective in not identifying what was meant by pay. The letter was a fishing expedition which did not comply with the requirement to set out a grievance in writing. That was particularly so when UNISON, who wrote the letter relied on, could be expected to have knowledge of pay rates and comparisons. Such knowledge was demonstrated by the questionnaire subsequently submitted. A procedural bar to claims in the Tribunal is intended and is acceptable to achieve the statutory purpose.

Miss Ellenbogen submitted that the rights conferred by the 1970 Act are premised on comparators with the claimant. The essence of a grievance is in comparisons and these should be specified. The intention to achieve conciliation and resolution of disputes without Tribunal proceedings is otherwise defeated. Further, the correlation principle becomes a dead letter if nothing more is required by way of a statement of grievance than the jurisdiction involved. Particulars of what the dispute is about must be given.

Miss Ellenbogen relied on the judgment of Lady Smith in the EAT in the Highland Council case, at paragraph 32:

“The employer is entitled to know the essence of what it is that he has to respond to. He is entitled to approach the fixing of the stage two meeting, including, for instance, the identification of those who should be present at the meeting, on the basis of such knowledge, all with a view to trying to resolve the issue. He is not, in my view, being provided with that material if all he is being told is that his employee has an equal pay complaint. To regard that as enough would be to reduce the stage one grievance communication to a relatively meaningless level of generality or tokenism. That would not accord with a statutory scheme that is intended to try and bring about an efficient and effective practical result.”

In the Sandwell cases, Mr Stafford QC submitted that, for present purposes, the UNISON letter of 21 September 2006 was a nullity. UNISON had provided a haystack and no way of finding the needle in it. To permit the letter to stand as a grievance would be to permit a Union to cast a snook at Parliament and Employment Tribunals. In these cases, there was not even the Agenda for Change dimension to narrow the investigation.

The letter did no more than identify a statute. It was not susceptible to scrutiny in a way that would encourage dialogue between the parties. The purpose of the 2002 Act was to impose a jurisdictional threshold. The capacity to serve a questionnaire before stating a grievance carried with it the capacity in a potential claimant to inform herself of relevant facts.

In the case of a collective complaint, the procedure did not require a meeting because paragraphs 7 and 8 of schedule 2 to the 2002 Act did not apply. It followed that the requirement not to litigate in the Tribunal unnecessarily required a statement of grievance which was capable of scrutiny and which encapsulated the substance of the complaint. Otherwise, it would be possible to go to the Tribunal with a largely unknown complaint.

The availability of other safeguards, case management procedures at the Tribunal, the prospect of reduced damages (though not in the case of collective complaints) if the section 31 procedure is not completed and exceptionally, an award of costs, do not permit the jurisdictional rule imposed by section 32 to be deconstructed.

It is submitted that the price to be paid for admission to the procedure and the right to complain to the Tribunal is substantial. There are several types of equal pay claim and a prospective complainant to a Tribunal is required to specify what she has in mind. It is not enough merely to attach the equal pay label. The grievance procedure is intended to produce a detour which is not to be short circuited. The act or omission of the employer must be identified.

The absence of a requirement for a meeting or meetings in the case of a collective complaint demonstrates, it was submitted, that the written grievance must have the content advocated. The word ‘grievance’ is clearly intended to have the same meaning in paragraphs 6 and 9 of schedule 2 to the 2002 Act. If the jurisdictional bar imposed by Parliament is to have any meaning, it must cover collective complaints, which can proceed to a Tribunal without the requirement for a meeting between the parties. It follows, it was submitted, that it must require the grievance to be stated with particularity. The requirement must be levelled up to cover the procedure under collective complaints. Regulation 11(3)(c) of the 2004 Regulations gives protection to a potential claimant who cannot discover appropriate particulars.

It nullified the correlation principle, it was submitted, that is, the requirement that the complaint submitted to the Tribunal was the same as that in the grievance statement, if the grievance statement need not be particularised. An employee is protected by the comparatively generous time limits permitted. A potential claimant could submit a further grievance statement, or further grievance statements, if enquiries and discussions demonstrated that the real complaint was different from that originally made.

Mr Stafford also referred to the difficulties which an employer may have in identifying comparators without particulars from a claimant. For example, the true complaint may be that a woman was paid less than her predecessor or the comparison may be intended to be with a person in a quite different type of employment. There may also be a degree of outsourcing so that particulars are not readily available to the employer.

In the course of argument, the distinction between “the grievance” (paragraph 6 of schedule 2) and “the basis for it” (paragraph 9), what Mr Stafford described as the “what” and the “why” of the grievance, was considered. Mr Stafford was inclined to minimise the difference, stating that “the basis for” the claim may be no more than knowledge that a potential comparator has a bigger wage packet.

For the claimants, Mr Epstein QC relied on the reasoning of Elias J. He referred to the difficulty an employee would in practice have in providing information when making her grievance, notably in an equal pay claim. He referred to the distinction in the Regulations between the “grievance” and the “basis of grievance” as demonstrating that the procedure did not require detail in the statement of grievance. There was nothing to support the levelling up of the requirement because meetings were not required when there was a collective complaint.

Parliament had not intended the multiplicity of grievance statements which the correlation principle could well require in claims such as the present when further information, for example as to comparators, becomes available during discussions and negotiations. Further, the need to make a later grievance statement would be detrimental to claimants because back pay can be claimed only for a period of 6 years before the institution of proceedings in the Tribunal. Further, a mere recital, in the alternative, of the three causes of action in section 1(2) of the 1970 Act in an equal pay claim added nothing because the employer could be expected to know the state of the law.

Mr Epstein went as far as to submit that even a deliberate concealment of relevant information when the grievance statement was submitted did not invalidate that statement. That principle applies, he submits, whether the claim is under the 1970 Act or under other provisions.

Elias J concluded, at paragraphs 62, 64, 65, 66 and 70 of his judgment:

“62.

I have reached the conclusion that the submissions of the claimants are correct and that only the minimum requirement is necessary when raising a statement of grievance. In my judgment, it is enough for the claimant to indicate that he or she is pursuing an equal pay claim. That is compatible with the definition of a "grievance". The employee has made it plain that she objects to action taken by the employer, namely the failure to pay the sum due to her, and by identifying the claim as an equal pay claim she is also revealing the reason why she is saying that. She is not, for example, contending that there has been a failure to pay as a result of some mistake or because overtime hours have not been counted, or because her rate is below the minimum wage, or anything of that nature. The employer knows that the allegation is that a comparable man doing equal work (whether that is work rated as equivalent, equal value, or like work) is receiving more than she is and he ought not to be. That much is inherent in the action being identified as an Equal Pay Act claim.

. . .

64.

This construction is supported, in my view, by considerations of policy. The effect of construing the concept of "the grievance" too widely is that claimants - who will often in this jurisprudence be litigants in person - are denied the opportunity to bring their claims altogether if they have not raised a relevant grievance in time. That is a draconian step to take for what might be a purely technical failure to comply with the regulations. In my judgment it is particularly important to recognise that the logic of the argument advanced by the employers is that even if the employee in fact provides orally all relevant details of the claim so that the employer has every opportunity to deal fully with the grievance (and indeed perhaps he even does so, albeit not to the employee's satisfaction), the failure to comply with paragraph 6 by formally identifying the comparators (by name or job) will still prevent the Tribunal from hearing the claims. That would in my view be a deeply unattractive position for the law to adopt and would be wholly inconsistent with the objective of the statute.

65.

Moreover, I do not accept the submission that the contrary construction renders the requirement to state a grievance a dead letter. If the employee only provides the bare statement and does not, when providing the basis of the claim, assist further by providing details of the claim sufficient to enable the employer to understand and seek to resolve the grievance, that can still have very real adverse practical consequences for the employee. As I have pointed out, he or she can be subject to a reduction of compensation of up to 50 per cent. No doubt if the Tribunal thought that the employee was deliberately or cynically refusing to engage in the grievance process, the maximum amount, or something very close to it, would be awarded.

66.

I recognise that this is not a sanction that arises in circumstances where a collective grievance is lodged under regulation 9. However, I do not think that the fact that Parliament has left it to the collective parties to resolve the grievance according to their own procedures should dictate the proper construction of paragraph 6.

. . .

70.

If my construction of what constitutes a grievance is correct, it follows that the correlation principle will in practice be very easy to satisfy. If the grievance states that the complaint is an equal pay complaint, a claim form which reflects that fact will suffice whether the details of the claim are provided or not. Again, this does not make the exercise a pointless one. If the claim raises claims of a quite different jurisdiction, for example a dismissal claim or redundancy, there will obviously be no correlation.”

Having stated his conclusion that the Tribunal did have jurisdiction in all these cases, Elias J referred to the additional detail in the Suffolk cases which, in his view, would have made the statements of grievance appropriate “even if it was necessary to provide more detailed identification of the comparator”.

Elias J referred to the decision of the Inner House of the Court of Session in the Highland Council case, and acknowledged, though did not follow, the “careful reasoning” of Lady Smith in the EAT in that case. The Inner House, on appeal in the Highland Council case (Cannop and others v Highland Council [2008] IRLR 635), stated that the issue on which Lady Smith had pronounced (paragraph 36 of this judgment) did not arise for decision in the case and the court expressed no opinion on it, one way or the other (paragraph 32). The issue identified by the Inner House was:

“[Whether] in every case, the statement of grievance must specify the comparator or comparators relied on, and that these must not be materially different from those relied on in the ET1 [complaint] to the Tribunal.”

Elias J referred to (and Mr Epstein relies on) the statement of Langstaff J in Galaxy Showers Ltd v Wilson [2006] IRLR 83, at paragraph 10:

“The definition of grievance does not upon the face of it contain any requirement that the complaint should go any further than being a complaint about what the employer has or has not done. There is no particular formality required by the statutory wording.”

Reliance is also placed on statements of Burton J (President) in Shergold:

“26.

It is quite plain that the purpose of this legislation was to encourage conciliation, agreement, compromise and settlement rather than the precipitate issue of proceedings.

27.

To that extent, therefore, the need for parties to understand each other's position before proceedings are launched (and the opportunity for resolution short of litigation) is to be welcomed, but what must be guarded against, once such legislation has been enacted, is that it can create its own hostage to fortune and, in fact, introduce an entirely and, we are satisfied, unintended result of creating undue technicality and over-sophistication, which can result in problems for both sides.

. . .

30.

First, the statutory requirements, we are satisfied, are minimal in terms of what is required. It is simply that the grievance must be set out in writing. . . . the original setting out of the grievance itself does not require to be so particularised.”

In Canary Wharf Management Limited v Edebi [2006] ICR 719, Elias J stated, at paragraph 24:

“The law in this area is directed at employees who in many cases – perhaps most – will have no knowledge at all of the relevant law. The aim is to promote the use of appropriate procedures. It would be quite wrong to require the grievance to be made in any unduly legalistic or technical manner.”

The complexity of equal pay claims has been acknowledged. Giving the judgment of this court in Redcar & Cleveland Borough Council v Bainbridge & Ors [2008] EWCA Civ 885, Mummery LJ considered the nature of such claims under the 1970 Act. He stated, at paragraph 256:

“The cause of action is asserted pursuant to statute. Within and by virtue of the statute there is more than one cause of action. There are three different legal bases for an equal pay claim.”

Mummery LJ added, at paragraph 257:

“. . . Claimants are entitled to put forward all their equal pay claims cumulatively. The different heads of claim may have different outcomes as a result of different ingredients leading to the selection of different comparators and to different evidence being adduced.”

The correlation principle (paragraph 2 of this judgment) was stated by Burton J in Shergold, at paragraph 35:

“The grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance, if the relevant statutory provision is to be complied with.”

In Highland Council, in the Inner House, the Lord President stated, at paragraph 29:

“The correlation to be looked for is whether underlying the claim presented to the tribunal is essentially the same grievance as was earlier communicated.”

Having set out, I hope sufficiently, the approach in earlier cases and the factors relied on by the parties as demonstrating the meaning of the requirement to “set out the grievance in writing” in paragraph 6 of schedule 2 to the 2002 Act, I can set out my conclusions:

Bearing in mind those factors, my conclusion, in these equal pay claims, is that it was sufficient by way of a statement of grievance to inform the employer that the claim was brought under the 1970 Act. I agree with the conclusion and reasoning of Elias J in the present cases. Further detail was not required. In an equal pay context, to require particularisation in advance of the negotiation encouraged by the statute would often be to create a substantial obstacle to claims before Employment Tribunals which cannot, in my view, have been intended by Parliament.

I mention other potential claims. In Step In Time Limited v Mrs Fox & Hunter [2008] UKEAT S/0031/08, in which judgment was handed down on the same day as that in the present cases, Elias J considered Mrs Hunter’s victimisation claim. He stated, at paragraph 36:

“The employment judge considered, as in my view he was plainly entitled to do, that the essential complaint was victimisation and the particular matters identified in the claim form simply provided the details of the alleged victimisation. In the normal way that would be information that an employee would be would be expected to give at stage two of the grievance procedure. It would not be a matter that would be required at stage one.”

In Mrs Fox’s case, the case was remitted to the Employment Tribunal to decide (paragraph 43) whether a constructive dismissal claim would ‘properly be treated as referable to that grievance letter, notwithstanding that the grievance was, ostensibly at least, resolved’. Elias J deplored the technicality involved.

I have formed a clear view in an equal pay context but am reluctant to give carte blanche to prospective claimants in all potential cases merely to give, and only to give, a heading such as unfair dismissal, harassment, victimisation, sex or race discrimination or a combination of these. A statement of facts will often be appropriate, the cause or causes of action plainly emerging and incantation of the statute not essential. There will be causes of action and cases in which particulars can readily be given by a potential claimant. For example, there are likely to be cases in which reliance is to be placed on a single event such as selection of a man rather than a woman for a particular job on a particular occasion. There could be cases in which a potential claimant intends to rely on only one of several potential events. In either case, failure to identify the event relied on could lead to a substantial amount of unnecessary work for the employer and amount to an abuse of process.

What purports to be a grievance statement could so mislead or distract that it is an abuse of the procedure contemplated by Parliament. It would be open to the Tribunal to hold such a statement was not a statement complying with paragraph 6 or 9 of schedule 2. I would expect such cases to be rare. It is in the interest of potential claimants to initiate the procedure in a constructive way which is conducive to successful negotiation.

I would dismiss these appeals.

I have had the advantage of reading Pill LJ’s judgment in draft. I agree with it, and like him, I would dismiss these appeals. I respectfully adopt his statement of the facts and the relevant statutory provisions. I also adopt his use of abbreviations for the 2002 Act and the 2004 Regulations. I expressly associate myself with each of the conclusions which he expresses in paragraph 57(a) to (m) of his judgment. I add a judgment of my own for reasons which will, I think, become apparent.

The first point which arises, in my judgment, is what is meant by the word “grievance” in the 2002 Act and the 2004 Regulations. This seems to me a straightforward point of statutory construction. It is rightly common ground, and an elementary rule of statutory construction, that a word bears the same meaning wherever it is used in a particular statute or regulation, unless Parliament has expressly enacted that in a given context it should bear a different meaning. In the instant case, there is no such enactment. Thus it is common ground that the word “grievance” in the 2002 Act and the 2004 Regulations must bear the same meaning whenever it is used. The only distinction drawn by the statute and the regulations is the difference between the “individual” grievance and the “collective” grievance. Each, however, is a “grievance”.

The only statutory definition of the word “grievance” is contained in paragraph 2 of the 2004 Regulations. “Grievance” is there defined as “a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him”. That definition does not, of course, resolve the question before us. However, under the standard procedure set out in Part 2 of Schedule 2 of the 2002 Act, what is described as “Step 1; statement of grievance” is identified in paragraph 6 in these words: “The employee must set out the grievance in writing and send the statement or a copy of it to the employer”. Step 2 relates to a meeting, and although Pill LJ has already set this out in paragraph 4 of his judgment, the relevant part of paragraph 7 bears repetition: -

In my judgment, the words of paragraphs 6 and the highlighted words in paragraph 7 of Schedule 2 to the 2002 Act are capable of only one meaning, which is strongly supportive, if not conclusive, of the interpretation of the word “grievance” for which the respondents contend in this appeal. The “basis for the grievance” plainly does not have to be contained in the statement made under paragraph 6. Alternatively, to put the same point a slightly different way, a grievance is still a grievance under paragraph 6 even if it does not set out “the basis for the grievance”. This conclusion, in my judgment, in combination with the matters identified by the judge and by Pill LJ is fatal to the appellants’ respective cases.

In my judgment, there is nothing in either the 2002 Act or the 2004 Regulations which conflicts with this conclusion or which leads to a different result. In the “modified procedure” under paragraph 9 of Chapter 2 of Part 2 of Schedule 2 to the 2002 Act (which applies to a grievance under paragraph 6 of the 2004 Regulations) the employee making the grievance “must - (a) set out in writing - (i) the grievance, and (ii) the basis for it, and (b) send the statement or a copy of it to the employer”. Once again, as it seems to me, Parliament draws a distinction between “the grievance” and “the basis for it”. However, pursuant to paragraph 6(3)(a) of the 2004 Regulations, the modified procedure applies where: -

the parties have agreed in writing…..that the modified procedure should apply.

None of this, it seems to me, is in any way inconsistent with the construction of the word “grievance” which I favour. None of it, of course, applies on the facts of this case.

The procedure for collective grievances is set out in Regulation 9 of the 2004 Regulations, which my Lord has set out in paragraph 6 of his judgment. The obligation on the “appropriate representative of the employee having the grievance” is, firstly, to write “to the employer setting out the grievance” and, secondly to name “at least two employees, one of whom is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance”. Since “grievance” has the same meaning throughout the 2002 Act and the 2004 Regulations, it follows that a collective grievance can be in the same form as an individual grievance.

As I understood it, the principal argument against this construction was that it bypassed the statutory intention by making it impossible for an employer in a large organisation such as the National Heath Service (NHS) or a local authority to respond meaningfully to the grievance, particularly where no comparators were identified. Although this argument was repeated a number of times by both appellants, and notably by Miss Ellenbogen in her reply, I am unpersuaded by it for a number of reasons.

Firstly, the Employment Tribunal has a number of powers to compel compliance (for example those identified by Pill LJ in paragraphs 11 and 17 of his judgment). In addition to those identified by Elias J and Pill LJ these powers include, of course, the power under paragraph 18(7) to strike out a claim which has no reasonable prospect of success or which has been conducted unreasonably.

For the present, I put on one side common sense and a willingness to make the system work, although this is a matter to which I will revert at the end of this judgment.

Secondly, Miss Ellenbogen, for Suffolk provided us with copies of substantial parts of Agenda for Change published by the Department of Health in December 2004. These included the Final Agreement contained in that document between the UK Health Departments, NHS Confederation, Unions and Professional Bodies to modernise the NHS pay system. We were also shown the NHS Job Evaluation Handbook published by the Department of Health in October 2004.

Miss Ellenbogen also produced copies of two versions of the Suffolk NHS Mental Health Partnership NHS Trust Grievance Policy initially as issued in 2000.

I do not propose to burden this judgment with extensive quotations from these documents. It is, I think, sufficient to record that Agenda for Change, as its name suggests, proposed a wholesale re-organisation and rationalisation of employment and pay within the NHS with equality of treatment as a major objective.

Similarly, it is plain from Suffolk’s own Grievance Policy that Suffolk aimed “to resolve grievances as close to the point of origin as possible” through the employee’s “immediate manager or supervisor”. This, the documents say, is “the point at which most grievances should be resolved”. The later issue of the policy begins with the admirable sentiment that “In implementing this policy Managers must ensure that all staff are treated fairly and within the provisions and spirit of the Trust’s Equal Opportunities Policy”. It is notable that grievances over equal pay are not within the exclusions to the policy contained in paragraph 4, and the procedure (see paragraph 6.1) is that “staff will raise any concerns as early as possible with a view to resolving them with their immediate manager”. Paragraph 6.1 also provides that: “Managers will consider any grievances carefully, follow timescales as set out in this policy and settle grievances equitably and fairly. The procedure is designed to be informal and the aim is for the employee “to settle the matter informally in the first instance by raising it with their immediate line manager / supervisor …….Most issues will be resolved at this stage” (by discussion: see paragraph 7). Where the formal procedure is engaged, the grievance has to be defined in writing, and (paragraph 8.1.3) “on receiving a written grievance, the immediate line manager / supervisor should consult with Human Resources about which manager should chair the grievance meeting – and so on.

All this, it seems to me, casts substantial doubt over the proposition that the employer would be unable – because of its size and the absence of comparators – to deal with grievances. It is clear to me that Agenda for Change itself is plainly designed to reform the NHS pay system and the agreement to which we referred applied “to all staff directly employed by NHS organisations except very senior managers …..”. Furthermore, as one of the reasons for NHS pay modernisation was to ensure equal pay for work of equal value, the document itself makes clear that it is crucial that every effort is made to ensure that the NHS Job Evaluation Scheme is fair and non-discriminatory in both design and implementation.

Against this background, and the obvious nature of Agenda for Change one might have reasonably expected Suffolk, as a good employer, to welcome grievances designed to achieve equality under the 1970 Act. Neither the correspondence nor the responses to the various claims contain any hint of this. To the contrary, every point, both technical and otherwise is taken.

My second heading relates to the decision of the EAT in Scotland in Highland Council v TGWU and others [2008] IRLR 272 and the decision of the Court of Session in the same case, entitled Cannop and others v Highland Council v TGWU and others [2008] IRLR 634.

Employment Law is one of the few areas in which Tribunals and the EAT exercise concurrent jurisdiction, and indeed in which the President of the EAT in England is entitled to sit in Scotland and vice versa. Since there appears to be a conflict of opinion as to the meaning of paragraph 6 of Schedule 2 of the 2002 Act between the English and the Scottish EATs, it is, in my judgment, important for this court to resolve it.

It is, perhaps, fortunate, that the Court of Session took the view that it was neither necessary nor desirable to express an opinion on the question of whether comparators need to be specified in the grievance document in an equal pay dispute. It also held that in so far as the Employment Tribunal and the EAT had expressed opinions on what the Court of Session described as the “hypothetical Question” (namely whether an employee who had simply stated that she had an equal pay grievance (and nothing more) had satisfied paragraph 6 of Schedule 2 to the 2002 Act) those opinions were obiter.

There is, accordingly, in my judgment, nothing in the Court of Session decision to inhibit this court in preferring the reasoning of Elias J to that of Lady Smith. Both for the reasons given by Elias J and Pill LJ, as well as in the light of the view which I have taken of the statutory provisions, I have no hesitation in so doing, much as I understand and sympathise with Lady Smith’s reasoning. It seems to me, however, that much of what Lady Smith seeks to achieve can be achieved in practice by a sensible operation of the system.

This leads me to my third and final heading, which I acknowledge is strictly unnecessary for the resolution of these appeals. In my judgment, the intention of Parliament in passing the 2002 Act and creating the 2004 Regulations is both simple and crystal clear. It wished to provide a straightforward framework in which disputes over equal pay (and other issues) could be amicably resolved without recourse to litigation. Sadly, this has not been the effect of the legislation.

I am the first to acknowledge that I came to Employment Law as a judge, and not as a practitioner, and that I sat in the EAT for less than three years. However, my experience both at the EAT and in this court is that employment related issues which were designed to be simple and understood by ordinary working people have become overlaid with degrees of sophisticated argument which at times render them unrecognisable.

My understanding of Employment Tribunals is that they were set up (initially, of course, as Industrial Tribunals) as fora in which ordinary working men and women (both employers and employees) could bring claims which they had been unable to resolve in the workplace, with a view to swift and straightforward resolution. To this end the rules relating to representation were very relaxed, case management powers are wide, and costs were only to be awarded in extreme circumstances.

My experience is that these essentially worthy aims are in grave danger of being frustrated by both over-elaborate and sophisticated argument unintelligible to the layman, and also by partisan posturing by both employers and union.

This case seems to me a paradigm example. I regard it as very simple. The statutory provisions seem to me very clear. Yet we have spent two days debating them, and they have required reserved judgments.

Lest it be thought that I am casting aspersions solely at the lawyers, let me record an exchange of correspondence between Unison and Sandwell in 2006. The Regional Officer for Unison wrote to Sandwell on 21 September 2006 setting out a grievance under section 32 of the 2002 Act and Regulation 9 of the Regulations. It identified the members on whose behalf the grievance was being raised and contained this paragraph: -

That was plainly a grievance within the 2002 Act and the 2004 Regulations and was recognised as such by the Head of Human Resources for Sandwell in his reply dated 26 September 2006. He says so. I quote the whole letter: -

The response to that letter is instructive. I quote the relevant passage: -

I have no doubt that Unison’s argument is technically correct, but it is singularly unhelpful. In paragraph 79 above, I was critical of Suffolk. Here I am critical of the union. Each side in this dispute, as it seems to me, has its own agenda, which it is determined to pursue, irrespective of what each acknowledges to be the clear intention of Parliament.

My layman’s plea, therefore, is that there should be a return to the clear intentions underlying the establishment of the Employment Tribunal system; that lawyers should strive for clarity and simplicity, and that unions and employers should strive to make the system work in the interests of ordinary working people. I can already hear the cries of sancta simplicitas.

I would, however, unhesitatingly dismiss the appeals.

I agree that the appeals should be dismissed for the reasons given by Pill LJ.