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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Highland Council v TGWU Unison First & Ors [2007] UKEAT 0020_07_1812 (18 December 2007) URL: http://www.bailii.org/uk/cases/UKEAT/2007/0020_07_1812.html Cite as: [2007] UKEAT 20_7_1812, [2008] IRLR 272, [2007] UKEAT 0020_07_1812

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APPEARANCES

 

For the Appellant	Mr J Peoples (One of her Majesty's Council) Instructed by: Messrs MacRoberts Solicitors 152 Bath Street Glasgow G2 4TB
For the First Respondents	Ms B Criddle (of Counsel) Instructed by: Messrs Thompsons Solicitors Berkeley House 285 Bath Street Glasgow G2 4HQ
For the Second Respondents	Mr R Moretto (of Counsel) Instructed by: Messrs Digby Brown Solicitors The Savoy Tower 77 Renfrew Street Glasgow G2 3BZ
For the Third Respondents	Mr P Clark (Solicitor) Messrs Stefan Cross Solicitors Buddle House Buddle Road Newcastle Upon Tyne NE4 8AW


 


SUMMARY

Equal Pay Act – Out of time

Equal pay claims and statutory grievance procedures. Whether claimants prevented by section 32(2) of the Employment Act 2002 from presenting complaints specifying different comparators from those (if any) specified in grievances. EAT held that Tribunals required to carry out a qualitative assessment to see if comparators in ETI were materially different from comparators in grievances.

THE HONOURABLE LADY SMITH

Introduction

1. This appeal arises out of many equal pay claims against Highland Council which are outstanding. Before an Employment Tribunal sitting at Aberdeen, an issue arose the resolution of which was liable to have a direct impact on claims at the instance of a group of claimants who were represented by Stefan Cross, Solicitors (the Third Respondents) and, possibly, an indirect effect on two other groups of claimants (the First and Second Respondents). It was determined by the Chairman, Miss FCC Carmichael, who upheld the submissions for the claimants in a judgment which was registered on 7 February 2007, following a pre-hearing review.
2. The appeal raises, once more, an issue regarding the application of the troublesome statutory grievance procedures. The relevant procedure was the standard grievance procedure. In short, the Tribunal required to address the question of whether or not the Stefan Cross claimants had complied with the provisions of paragraph 6 of Schedule 2 to the Employment Act 2002 ("the 2002 Act") in respect of their complaints, prior to presentation. Those are the provisions which require a claimant to:

"…set out the grievance in writing and send the statement or a copy of it to the employer."

before seeking to present any complaint to an Employment Tribunal that falls within a list of specific jurisdictions which includes jurisdiction to determine a claim under the provisions of the Equal Pay Act 1970 ("the 1970 Act").

3. It is mandatory that a claimant does so (section 32(2) of the 2002 Act) and the only statutory guidance as to what is meant by "grievance" in this context is to be found in regulation 2 of the Employment Act 2002 (Dispute Resolutions) Regulations 2004 which provides:

"Grievance means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him."

4. Specification of comparators was what lay at the heart of the matter in this case. There was variation as between the comparators specified in the relevant grievance letters and those specified in the forms ET1. The forms ET1 included comparators which had not featured in the grievance letters. The appeal bundle included, by way of example, the grievance document and ET1 submitted for a claimant named Caryl Goddard. The former stated the grievance as being that she was not paid the same as men doing jobs rated the same or lower than her. Those jobs were said to include those described in a list of eighteen different ones, categorised according to grade. The ET1 is different. It does not specify any grades and in a list of eight job descriptions, it names four which were not referred to in the grievance document.
5. The Tribunal referred to the claim of a claimant called Annella Bulch as being a typical example of a grievance statement and ET1 in the claims that were before it. Her grievance document stated:

"EQUAL PAY – JOB RATED AS EQUIVALENT OLD GREEN BOOK

I am not paid the same as men doing the jobs rated either the same or lower than me"

and

"These [men] include road sweepers refuse collectors and drivers and gardeners."

6. In her ET1, her description of the incidents that she believed amounted to discrimination were stated to be:

"1. ……..The claimant contends that her job is of equal value and/or rated as equivalent to the relevant posts listed below –

Other cleaning litter posts

Inverleith workshops

fleet maintenance

refuse collection schemes

Saughton Winter Gardens.

2……….The claimant does not receive the same pay and benefits as the comparators."

In these circumstances, had there been compliance with paragraph 6?

7. The Tribunal held that there had and pronounced the following judgment:

"The claimants, whose grievances identified comparators whose job types were rated in the Scottish Council for Local Authority Services ( Manual Workers) Scheme of Pay & Conditions of Service ("the Green Book") satisfied the standard grievance procedure contained at Part II of Schedule 2 to the Employment Act 2002, even although the job types of the comparators identified in their subsequent claims to an employment tribunal, which were also rated in the Green Book, differed from those identified in their grievance."

8. It is against that judgment that the respondents now appeal. They contended and contend that the Tribunal required to carry out a qualitative assessment, comparing each ET1 with the relevant grievance letter and determining whether, where there was a change of comparator as between them, it was material change. If it was then the complaint could not be presented unless the claimant first carried out the stage 1 grievance procedure requirements.

Relevant Law

9. In addition to the statutory requirements already referred to, the nature of an "equal pay" claim requires to be considered. It is a claim which arises under the provisions of the 1970 Act. At the heart of any woman's equal pay claim lies the need to identify a male comparator. It is of the essence of an equal pay claim that comparison is required. That is evident from the terms of section 1(2) which have the effect of posing three questions: 1. Is the woman employed in like work to a man in the same employment? 2. Is the woman employed on work rated as equivalent to a man in the same employment? and 3. Is the woman employed in work of equal value to that of a man in the same employment? If the answer to any of those questions is in the affirmative then another question arises, namely, whether any of the terms of her employment are less favourable than those of the man? If they are then they are treated, in short, as though they were not. As discussed in the recent decision of this Tribunal in the case of City of Edinburgh Council v Mrs C Marr & Ors; Amey Services v Mrs G Cardigan & Ors, the statutory provisions plainly envisage and require a comparative exercise to be gone through.
10. Turning to the statutory grievance procedures, the question of how much or how little is required for compliance with paragraph 6 of Schedule 2 to the 2002 Act has been considered in numerous authorities since the Act and its associated regulations came into force, the decisions in many of which turn on their own facts. Parties appeared to be in agreement that the most relevant discussions for the purposes of the present case were those contained in: Shergold v Fieldway Medical Centre [2006] IRLR 76, Canary Wharf Management v Edebi [2006] IRLR 416, and Alexander and another v Bridgen Enterprises Ltd [2006] IRLR 422. A number of points emerge from a consideration of these authorities:

- there appears to be a judicial consensus that is perhaps best summed up by the words of the President (Elias J) in Canary Wharf at paragraph 15:

"These are complex and not happily structured regulations."

- the underlying purpose of the provisions is:

" …to seek to prevent the matter going to an employment tribunal if possible by providing the opportunity for differences to be resolved internally at an earlier stage" (Alexander at paragraph 34; see also Shergold at paragraph 26).

- whilst it is important to refrain from approaching the question of whether or not an employee has complied with the regulations in an unduly technical way, it should also be borne in mind that if an employer receives a grievance document and fails to follow the statutory procedure thereafter, he is at risk of having to pay additional compensation if the employee subsequently succeeds in his claim before the Tribunal (2002 Act s.31) and it is not fair to expect him to take matters further unless he is aware that a relevant complaint has been communicated (Canary Wharf at paragraph 24).

- the grievance document does not require to be in any particular form or style. The statutory requirement is :

"simply that the grievance must be set out in writing." (Shergold at paragraph 30)

and there is thus considerable flexibility about the form of the document (Canary Wharf).

- as regards the required content of the grievance document, there is a significant difference as between the standard and modified procedures (Shergold at paragraph 30; Canary Wharf at paragraph 21). Under the standard procedure, the grievance document communicated at the first stage need not set out "the basis" for the grievance. It is sufficient that the employee sets out the grievance in writing and if he does so then he will not be prevented from presenting a complaint to an Employment Tribunal by reason of the provisions of s.32(2) of the 2002 Act. Under the modified procedure, he requires to set out both the grievance and the basis for it at the first stage.

- the grievance document requires to be in such terms that, on a fair reading of it, the employer can be expected to appreciate that a relevant complaint is being raised (Canary Wharf at paragraphs 24 and 25); he needs to be able to understand from the grievance document what is the general nature of the complaint that is being made (Shergold at paragraph 37).

- as regards the question of what amounts to the "basis" for the grievance, (which does not require to be set out in the grievance document itself under stage one of the standard procedure), it is that which the employee relies on to substantiate his complaint. It appears, accordingly, to be a matter of giving fair notice of what, evidentially, is being relied on by the employee who has the grievance; an explanation of how and why it is that they come to be making the complaint contained in the grievance document :

"The contrast between the standard and modified procedure highlights an important feature of the way in which the complaint must be made under the former. As we have noted, there is no obligation to set out the basis of the claim. It is enough, therefore, that the employee identified the complaint. The need to substantiate that with some evidence to justify it arises under the standard procedure at the second stage where the employee has to inform the employer what is the basis of the grievance."

(Canary Wharf at paragraph 21; see also the discussion with regard to the statutory dismissal procedures in Alexander at paragraph 38 -39 which, similarly, treats the "basis" of grounds for dismissal as being a matter of giving fair notice of the "case" against the employee ).

- to satisfy the requirements of s.32(2), the complaint that is presented to the Employment Tribunal must be

"essentially the same complaint" (Canary Wharf at paragraph 21; see also, Shergold at paragraph 37)

as that which had been communicated to the employer in the earlier grievance document. If it is not, then s.32(2) of the 2002 Act operates so as to prevent the employee presenting it to the Employment Tribunal. That is because the underlying statutory intention is that efforts must first be made to sort out whatever the issue is that has arisen, internally, without resorting to the Employment Tribunal. In Shergold, the President (Burton J) indicated, at paragraph 35, that he agreed with the respondent's submission that the grievance required to "relate" to the subsequent claim and the claim required to "relate" to the earlier grievance but it seems clear from his comments at paragraph 37 in that judgment and from what was said in Canary Wharf, quoted above, that the use of the expression "relate" is not intended to detract from or weaken the idea that the grievance and the complaint that is presented to the Tribunal require to be essentially or substantially the same complaint.

11. The Tribunal referred to and discussed the case of City of Bradford Metropolitan District Council v Pratt UKEAT/0391/06/ZT, but it is not directly in point since it concerns a case concerning the question of whether or not the modified procedure had been complied with in an equal pay claim. In that case, the claimant had sent a grievance letter to her employers in which she asserted her belief that she had been:

"paid less than male employees of this authority for which work is broadly similar or of equal value."

and that she believed she had been denied access to additional payments enjoyed by male colleagues. In an obiter remark relied on by the present claimants, HHJ Richardson said, at paragraph 49, that that letter would have complied with step one of the standard grievance procedure. For reasons explained later in this judgment, I take the view that it is not enough simply to state that the employee has an equal pay claim and I find it difficult to see that the grievance letter in that case went beyond that. I would not, accordingly, have shared HHJ Richardson's view of that matter.

The Tribunal's Judgment

12. The issue of law for the Tribunal was whether or not the claimants were entitled to present their complaints or whether they were prevented from doing so by the operation of s.32(2) of the 2002 Act. It did not, however, approach its task in that way. It stated, at paragraph 2, that the relevant issue was:

"whether, in a claim of equal pay, a claimant is entitled to amend her chosen comparator during the course of the proceedings without having to submit a fresh grievance and a fresh claim, in order to comply with the statutory grievance procedure?"

13. It seems to me that that was an erroneous basis on which to begin consideration of the case and may have been at least partly responsible for the Tribunal falling into error, which I am satisfied it did. The Tribunal was not considering an application to amend. Nor is it correct that "the course of proceedings" begins prior to the presentation of a complaint to the Tribunal, an assumption which is inherent in the Tribunal's approach as stated in that formulation of the issue. These cases were at the stage where the question that had to be addressed was that of whether or not the section 32(2) bar operated so as to prevent the course of proceedings beginning at all. The effect of the statutory provisions was, rather, that the issue for the Tribunal was whether or not the claimants had complied with the requirements of stage one of the standard grievance procedure.
14. The Tribunal makes no reference to any claimant or complaint other than that of Annella Bulch.
15. Later in its judgment, it posed two questions for itself:

1. had the claimants complied with Step 1 of the appropriate grievance procedure?

2. did the grievance relate to the subsequent claim and did the claim relate to the earlier grievance?

16. It answered them in the affirmative and pronounced judgment in the terms quoted above. As to its reasons for so doing, the essential reasoning appears to be that which is contained in paragraphs 51 and 57, which are in the following terms:

"51. The nature of the claimants' grievances and that of their claims left no room for the respondents to doubt that the claimants were complaining of being paid less for doing a job rated as equivalent or of equal value, than when men doing jobs 'included' in the examples, or of which the examples given 'were irrelevant'. When referring to comparators, the claimants indicated that those job types mentioned were not exhaustive. More significantly the substance in both grievance and claim was the same. It was accepted that the claimants had no need to identify any comparators at the stage of submitting their grievances, or indeed in their claim. As Mr Moretto pointed out, a claimant may not be in a position, despite her best endeavours, to ascertain who the appropriate comparators are until the mechanism of tribunal orders for documents or additional information become available to her, but that would not be until after the presentation of her claim. Since, in claims of equal pay, the respondents hold most, if not all the cards, until that stage, she may not be in a position to hazard a guess at a comparator or group, or she may have information she believes to be sufficient to allow her to make a stab at identifying comparators. Even if a claimant submits a questionnaire in order to obtain further information, there is no legal obligation on the employer to respond to it. Where she inserts a comparator, the statutory procedures, as interpreted by the authorities, disclose no intention of penalising a claimant, who in both her grievance and her claim identifies comparative job types, especially if they derive from the same source, albeit that the job types are not identical. In my opinion, where the claimant has climbed the ladder by submitting her Step 1 grievance, including job types rated in a recognised format (the Green Book) followed by her claim, who also includes job types from the same source, although not identical ones, that difference should not be treated as the snake which forces her to return to Go. …………….

57. I was also persuaded by the appeal to common sense in Mr Moretto's list of practical reasons why a claimant altering her comparator(s) between the stage of the grievance and claim should not have to submit a further grievance followed by a further claim. It frequently is to the claimant's advantage to select comparators from a range of job types, rather than to restrict herself to a single comparator. At the stage of selecting him/them, she is unlikely to have the benefit of information from a job evaluation study. Requiring a claimant to get her comparators in her grievance under para.6 right first time to start the process of complaining all over again would operate harshly, and potentially deny a claimant access to justice altogether if time bar also became a feature. The point too, that a claimant forced to begin again would be likely to include minimal information in the fresh complaint, would provide no assistance to the respondents in understanding better the grievance she was bringing, but simply multiply the internal processes they would require to complete in order to comply with the procedure. In demanding, in effect, that a claimant should in Mr Clark's description, 'submit full blown pleadings' in her grievance, so as to ensure that it matched her later claim, the respondents were, in my opinion, insisting on the undue technical and over-sophisticated approach, which the EAT expressly rejected when considering the content of a para.6 Step 1 grievance".

17. From a consideration of both these paragraphs, it seems plain that the Tribunal's reasoning was to the effect that not only was it enough for the purposes of s.32(2) that the claimant had, in her grievance document, sought to compare herself with any job type rated in the "Green Book" but it would not have mattered if the comparators referred to in her grievance document were quite different from those relied on in her subsequent claim, on the view that she was not required to "get her comparators in her grievance under para 6 right first time". It is difficult to resist the conclusion that the Tribunal's approach was to say that if both the grievances and the complaints presented to the Tribunal were about equal pay then that was enough. It is also reasonably clear that the Tribunal was influenced by the fact that it would be difficult and burdensome for claimants who discovered new relevant comparators after having submitted their grievance document but before presenting their complaints, to have to communicate further grievance documents. Further, if the Tribunal's approach was correct, then it would be enough for a claimant to state in her grievance letter simply that she had a complaint that she did not receive equal pay to men, without, at that stage, giving any indication of which comparator she relied on.

The Appeal

18. At the heart of the respondents' submissions lay a concern that if the Tribunal was correct, that meant that it was enough, at grievance stage, to provide only a broad and very general statement and leave the specification of comparators until the point where a complaint was being presented to the Tribunal. On the Tribunal's reasoning, it would be enough at grievance stage for an employee to state that she had a complaint about equal pay, an approach that was not supported by any of the authorities. Also, even if some comparators had been named at grievance stage, the Tribunal's approach gave the "green light" to any comparator being added at ET1 stage. In neither of these circumstances would the employer have been put in a position of being able to understand the nature of the grievance prior to the start of proceedings. For that, an indication of the comparator being relied on required to be given. Mr Peoples was at pains to stress that he was not saying that there had to be an absolute match between the comparator job title in the grievance document and the ET1. There needed to be enough, though, for fair notice, and the approach sanctioned by the Tribunal would reduce the required notice to a meaningless generality. What was required was for a qualitative assessment to be carried out by the Tribunal, to see whether there was any material change in comparators as between grievance and ET1. That was because the employer was entitled to know where he stood at grievance stage.
19. Mr Peoples took issue with a submission for the claimants that specification of comparators did not require to be included in the stage 1 grievance document because it was part of setting out the "basis" for the grievance. Without pushing the analogy unduly, Mr Peoples drew a comparison between the statutory grievance requirements and the style of a High Court indictment. The charge, which has to specify the essential components of the allegation in fact and law, could be compared to what was required for specification of the grievance at stage one of the standard procedure. The list of witnesses and productions could be compared to what was required by way of statement of "basis" at the second stage.
20. Mr Peoples also sought to draw support from the decision in the case of Bainbridge and others v Redcar and Cleveland Borough Council; Redcar and Cleveland Borough Council v Williams and ors l UKEAT/0424/06/LA, UKEAT/0031/07/LA. The decision in that case was, he submitted, support for the proposition that where a claimant sought to rely on different comparators, she was asserting different claims and therefore required to intimate separate grievances. Claimants could not have it both ways. It could not be that they were able to elide the res judicata rule whilst at the same time being excused the need to communicate a separate grievance.
21. All of the claimants began by submitting that it was not open to the respondents to argue that there required to be specification of a comparator in the grievance letter as they had conceded before the Tribunal that that was not necessary. They relied on references in the Tribunal's judgment to what had been said on behalf of the respondents at paragraphs 12, 36 and 52. Mr Peoples refuted the suggestion that any such concession had made. I rejected the claimant's submission. Whilst there is an indication from paragraph 52 that the respondents accepted that it was not necessary to name the comparators at grievance stage, that is not the same as suggesting that no specification need be given at all and I do not read anything recorded either there or in paragraph 36 as indicative of such a concession being made. Further, I was led to understand that in all the cases directly affected by the Tribunal's judgment, comparators had been specified in the grievance documents. Thus, although the question of whether any comparator needs to be specified at grievance stage arises because of the way in which the Tribunal reached its decision, it was not an issue specifically before it.
22. For the GMB claimants, Mr Moretto submitted that they were at a disadvantage. They did not know the pay scales and other relevant details of potential comparators at grievance stage. If the respondents' approach was correct then whenever the claimants identified a new comparator, they would have to start again, with a fresh grievance whether before or after proceedings had begun. There could be time bar problems. There would be enormous prejudice. It would lead to a wholly impractical and chaotic situation. It would allow and encourage the respondents to withhold relevant information for as long as possible and reward them for doing so. The purpose of the first stage of the grievance procedure was to register a complaint. At that stage, the employee only required to set out that she had an equal pay complaint. Specification of comparators was a matter of the setting out the basis of the claim and that was not required at that stage. The Pratt case was authority for that. Shergold and Canary Wharf could also be read as supporting that approach. Parliament did not, he submitted, intend there to be a large number of grievance procedures ongoing and clogging up the system. He referred to Bainbridge at paragraph 82 in support of that submission. The general nature of the complaint would be the same at ET1 stage even if no comparator had been specified at grievance stage. There was no requirement for any qualitative analysis to be carried out. Regarding the respondents' reliance on the reasoning in Bainbridge, Mr Moretto submitted that it simply showed that where a claimant relied on a new comparator it fell to be regarded as a fresh cause of action because the basis of action had changed but the action itself was still the same action. The decision did not address the problem of whether or not a fresh grievance required to be intimated.
23. For the TGWU/Unison claimants, Ms Criddle adopted Mr Moretto's submissions. The respondents' submissions were wrong as a matter of law and as a matter of practicality. She added that if the respondents were correct in their approach then an employer would be able to object to the amendment of a claim which had been instituted, to add a new comparator, on the basis that that comparator had not been included in any previous grievance document. It was not entirely clear whether the submission was being presented on the basis of an assumption that if such an argument were open to an employer then that would be an absolute bar to amendment or whether it was being suggested that it was inherently unfair that employers should be able to present such an argument. She also submitted that if the respondents' approach were followed, that would undermine the underlying intention of the 1970 Act. Under reference to Shergold, she submitted that the ET1 only needed to "relate" to the grievance. The complaint need not be identical; it was enough if they were essentially the same and provided both were equal pay complaints that would be enough. It was wrong to suggest that these employers did not know what the complaints were about. Employers were in a much better position than claimants to know who might be the right comparators. If claimants were required to identify comparators at an early stage that would not facilitate early disclosure by employers. The respondents' approach would give rise to unimaginable management problems. It was difficult to see how the Tribunal could make effective case management decisions if claimants had ongoing multiple claims. Matters would become incredibly complex in procedural terms.
24. In addition to the authorities relied on by Mr Moretto, Ms Criddle referred to Draper v Mears Ltd UKEAT/0174/06/ZT at paragraph 48 (where it is commented that if a grievance document is ambiguous or doubtful then it should be read in context), Martin v Class Security Installations Ltd UKEAT/0188/06/DM at paragraphs 11,12,13,14,and 21-2 (where it is commented obiter that a solicitor's letter indicating that their client had resigned on account of his employer's repudiatory breach, the details of which would form the subject of a grievance which would follow later, would have been enough for stage 1 of the statutory grievance procedure), and Grimmer v KLM Cityhopper UK [2005] IRLR 596 at paragraphs 10,11, 14 and 15 (a case where concerns were expressed that an unduly technical approach to the application of Employment Tribunal Rules of Procedure could have the result of rules made by the executive having the effect of preventing Tribunals from dealing with cases justly). I did not find that these authorities assisted. The present cases do not involve ambiguity or doubt in the original grievance document, the obiter comments in Martin turned very much on the particular facts of that case, and whilst the anxieties expressed regarding the technicalities of the Employment Tribunal Rules of Procedure are understandable, they are not relevant to the consideration of what is required by the primary legislation under consideration in these cases.
25. For the "Stefan Cross" claimants, Mr Clark adopted Mr Moretto's and Ms Criddle's submissions. He emphasised that there was a difference between the standard and modified grievance procedures. Under reference to Ms Goddard's grievance letter and ET1, he submitted that it was clear that they both related to an equal pay claim and that was enough. She had in fact gone further than was necessary in her grievance letter and gone some way towards setting out the basis of her complaint as well. It was never, though, intended to be an exhaustive list. At the stage of submission of grievance letters, claimants lacked information. He relied on a sentence at the end of paragraph 30 in Shergold: "But the original setting out of the grievance does not require to be so particularised." as support for the submission that there was no need to specify any comparator in the grievance document. He said that the problem was that if the comparators in the grievance document required to be the same as in the ET1 and a claimant found out about other comparators later, then her grievance would be "invalidated".
26. It was abundantly clear from the claimant's submissions that they were concerned that, in their particular types of employment, it is difficult for them to identify relevant comparators for the purpose of advancing equal pay claims. They sought to make much of the fact that they cannot seek orders for recovery of information from the Tribunal prior to the commencement of proceedings (although they did concede that they are able to use the procedures available under the Freedom of Information Act 2000) and of there generally being potential for the discovery of relevant comparators after the communication of a grievance document and after the start of Tribunal proceedings. Each referred to the respondents withholding information and Mr Clark's submissions went as far as to allege that the respondents were engaging in delaying tactics and efforts to frustrate their legitimate claims by preventing them access to the information they required and then criticising the claimants for not having provided specification in their grievance documents. None of these allegations went beyond generality though. No specific instances were cited. It did not thus seem to me that I could approach matters on the basis that there was any impropriety in the respondents' approach.

Discussion and Decision

27. I turn firstly to the matter of onus in an equal pay claim. One of the features of the claimant's approach that was striking was that they seemed to regard the respondents as somehow being in the wrong for failing to identify comparators for them at the grievance stage and, possibly, thereafter. That is, however, an approach which fails to recognise that the scheme of the 1970 Act is that the onus is on the claimant at the outset. It is only if a claimant overcomes the section 1(2) and 1(6) hurdles of showing that her job is or was of like work, work rated as equivalent or work of equal value to her chosen comparator that a presumption of discrimination arises and only then that the onus passes to the employer to displace that presumption if he can. Thus, it is only incumbent on an employer to volunteer information about comparators if he requires to do so when seeking to rebut the presumption of discrimination or if he has been ordered to do so either under the Freedom of Information Act provisions or by an Employment Tribunal in the course of proceedings. Otherwise, difficult though it may be, whether in the case of local authority or other employment, it is for the claimant to find her comparator and state her case.
28. The claimant can rely on this approach to her own advantage, which was what happened in the Bainbridge case. One of the issues considered by the Employment Appeal Tribunal there was that of whether, where an employee had already pursued to judgment an equal pay claim under reference to one comparator, she was thereby precluded from pursuing a further claim under reference to another comparator. The argument against her was that the matter was res judicata. It was argued on the claimant's behalf that they were separate causes of action. Since different comparators were being relied on, they were different claims. The Employment Appeal tribunal held that the separate claims were distinct causes of action and res judicata did not apply. Whilst they were each breaches of the same statutorily imposed contractual term, they were committed in different ways. There was one contractual term, the equal pay term, but it potentially contained a number of "contractual promises" each of which the employer was obliged to honour and each of which had the potential for being breached. The application of the statutory grievance procedures was not under consideration but I agree with the respondents that it seems only logical that if the Bainbridge analysis is correct, the introduction of a new comparator post grievance has the potential to amount to a new complaint.
29. Before turning to a consideration of what is required by the grievance procedures regarding the particularities of equal pay cases, some general comments fall to be made. Firstly, it is important to bear in mind that these cases concern the issue of whether or not a mandatory statutory procedure has been complied with. There are no provisions for relaxation of the procedure whether on equitable or other grounds. Either there has been compliance or there has not. Many have grown to dislike these procedures. Many, drawing on their experience of the way they work in practice, have found them to be less than helpful despite their laudable objective of smoothing the path to dispute resolution. It is plain that those involved in the processing and handling of equal pay claims have found them particularly burdensome. Many will welcome their promised repeal with open arms. Be all that as it may, for the time being they remain in place as a matter of law, with equal pay claims having been brought expressly within their ambit, and they have to be observed. Secondly, as with any mandatory statutory procedure, the fact that it is difficult to comply does not mean that a person can be regarded as having complied if they have not done so or that they should be excused compliance. Thirdly, even if it can be said that compliance is impractical and unwieldy, that simply discloses a problem with the system that Parliament has created and is not a reason or justification for disregarding the system. Fourthly, the intention of Parliament as can be gleaned from the terms of the legislation is relevant when determining what the procedure requires. As was discussed in the authorities to which reference has already been made, the underlying purpose of the statutory grievance procedures is to seek to encourage conciliation and the avoidance of disputes requiring to be resolved in a Tribunal setting.
30. I turn then to what requires to be stated in a grievance document for stage 1 of the standard procedure in an equal pay claim. It is of the essence of the claimants' approach that although there was some specification of comparators in the grievance documents in these cases, that was not necessary and therefore, it is of no consequence if materially different comparators were specified in the forms ET1. Accordingly, it is quite unnecessary, on their argument, to specify any comparator at all at stage 1 of the grievance procedure. They did appear to accept that there would have to be specification by stage 2, on the view that that would form the "basis" of the claim. For reasons which were not explained, a requirement to specify a comparator at that stage did not seem to involve the same host of difficulties in identification referred to at the earlier stage.
31. Having carefully considered the arguments on both sides, it seems to me that the exercise of comparison is so fundamental to a complaint that an employer has failed in his equal pay obligations, that there must be some specification of comparator, at least by reference to job or job type in the grievance document. Without that, the employer cannot be expected to appreciate that a relevant complaint is being made. It cannot be enough to state that an equal pay claim is being made without saying more. That would not amount to a relevant complaint of breach of the 1970 Act requirements. I recognise that a distinction has to be drawn between the separate stages of the procedure. The employee does not have to set out the "basis" for the grievance at the first stage. It is, however, wrong, in my view, to regard the specification of a comparator as being a matter of setting out the basis for the grievance. Setting out the "basis" is not a matter of inserting the essentials required to render the complaint relevant but rather a matter of fleshing out those essentials. Hence, no doubt, the reference at paragraph 21 of Canary Wharf to "basis" being a matter of substantiation by reference to the evidence being relied on. That is, it seems clear to me, the "information" that is to be comprised in the "basis" (2002 Act Schedule 2 paragraph (2)(b)).
32. The employer who receives the grievance document at the first stage is entitled to a clear communication that a relevant complaint is being made. He is entitled to know if the complaint is something which could give rise to proceedings before an Employment Tribunal since if it is and he does not follow the statutory procedure he could be penalised. He cannot reasonably be expected to appreciate that an employee is asserting that he can and will institute such proceedings if his complaint does not include the essential elements of a relevant claim. 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 2 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 1 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.
33. I turn then to the separate but related question of what happens when a claimant discovers materially different comparator(s) after having communicated a grievance document which may or may not have specified some comparators. I am not persuaded that matters then become as unworkable or difficult as the claimants would have it. It seems to me that there are two possible outcomes, depending on the stage at which the further comparators are found. If Tribunal proceedings have not commenced then, to comply with the statutory requirements, a further grievance document will require to be communicated if the claimant wishes, in the event that the grievance procedure does not resolve the issue, to rely on that comparator in a subsequent Employment Tribunal claim. Just as this Tribunal in Bainbridge did not see that there was any difficulty in one claimant having several separate equal pay claims, I do not see that there is, in principle, anything wrong with one claimant having more than one grievance procedure. It will, of course, always be open to employer and employee to agree that one meeting will cover both grievances, if that seems appropriate.
34. If Tribunal proceedings have commenced then it is not a question of considering whether a claim can be presented or not. It has already been presented. There is no question of the pre-existing grievance procedure being "invalidated". What the claimant can do is to seek to amend her existing claim, the decision on which the Employment Tribunal makes in the exercise of its discretion without reference to section 32(2) which would not come into play in these circumstances. Contrary to what seemed at one point to be apprehended by the claimants, the Tribunal would not require to refuse such amendment by reason of the fact that the new comparator(s) had not featured in the original grievance document. That would be but one of the factors that the Tribunal could be expected to take into account and if there was a good reason for the reference to the new comparator(s) not having been made at that stage then that would, no doubt, weigh in the claimants' favour. Alternatively, where Tribunal proceedings have already commenced, it would be open to the claimant, if so advised, to start afresh in respect of the new comparator, with a fresh grievance and, if the issue is not resolved through the grievance procedures (which should not be assumed to be without prospect of success) with a fresh Tribunal complaint.
35. The Tribunal in these cases did, at the point of its formulation of the issue (referred to above) turn its mind to amendment principles but it seems to have confused or conflated them with what arises in a question under section 32(2) of the 2002 Act. Its formulation of the issue does seem to have been based on an assumption that it would be fettered in its exercise of discretion on a motion to amend by the requirements of the statutory grievance procedures but, for the reasons I have explained, that is not right.
36. It follows that I accept the respondents' submission that, the point having been taken by them, the Tribunal in these cases required to satisfy itself that each complaint was essentially the same as that which had been complained of in that claimant's grievance document. That included the need to check that comparator(s) which were substantially the same or not materially different, were specified in both documents. In the event that comparator(s) appeared in the ET1 complaints which were materially different from any specified in the grievance document, then the effect of section 32(2) of the 2002 Act was that the complaint could not be presented under reference to them. The respondents referred to this as the need to carry out a qualitative assessment and I accept that that is an appropriate characterisation of the necessary task.
37. I am conscious of the fact that the practical effect of this conclusion may be to cause a significant increase in the paperwork burden on all involved in equal pay claims but if it does then that is but another unfortunate by product of this legislation and is not a reason to refrain from adhering to its requirements.
38. In these circumstances, I will pronounce an order upholding the appeal and remitting to the same Employment Tribunal to consider the issue of whether section 32(2) of the 2002 Act applies so as to prevent these complaints being presented in any respect, having regard to the fact that to determine that issue, it requires to consider whether each claimant has previously communicated a grievance document to the respondents specifying comparators that are not materially different from those specified in their forms ET1.