UK: Essentially The Same Or Do Not Pass Go

Last Updated: 17 January 2011
Article by John Macmillan

Dundee City Council v McDermott & Others UKEATS/0026/10
Perth & Kinross Council v Amery & Others   UKEATS/0027/10

The EAT has issued its decision in an appeal in which MacRoberts LLP acted on behalf of the successful local authority Appellants on the extent to which an equal pay claim need correspond with the supporting grievance in order to comply with Section 32 of the Employment Act 2002 (now repealed).

Under Section 32, employees were required to submit a grievance before presenting a claim to the Employment Tribunal.  Failure to do so would result in their claim being barred.  There has been extensive litigation about what constituted a grievance, particularly in the context of the thousands of equal pay claims raised against local authorities across the UK, where it has been common for Claimants to state in their grievance that they are entitled to equal pay when compared with certain specified posts within the local authority but then to identify different and/or additional comparator posts in their tribunal claim.

Lady Smith held that the Dundee Employment Tribunal had erred in law in finding that compliance with Section 32 was achieved simply if the grievance was about equal pay, and the claim to the Tribunal was a complaint about equal pay, where in some cases the comparators identified in the grievance and in the subsequent ET1 were materially different. 

The Employment Judge had referred to Suffolk Mental Health Partnership NHS Trust & Others v Hurst & Others [2009] IRLR 12, where the Court of Appeal had found that a grievance about equal pay need only be "in the most general terms".  Lady Smith concluded that the Court of Appeal's decision was not the appropriate authority where the Claimants had chosen to identify comparators in their grievance and the relevant binding authority was Cannop & Others v Highland Council [2008] IRLR 634, where the Court of Session considered that the grievance underlying the ET1 must be "essentially the same" as the earlier intimated grievance. 

Lady Smith commented in relation to the statutory grievance procedures that "[i]t has been observed that rarely can there have been legislation that was more counter-productive but that is probably an understatement. That said, it is the law which applies to these cases and so it requires to be applied."

Applying Cannop, Lady Smith found that it is not sufficient that the grievance and ET1 both identify complaints about equal pay.  There requires to be an assessment of the complaints within the grievance and the ET1 and, where different or additional comparators are identified in the ET1, the complaints may be found not to be essentially the same.  If so, the claim should be restricted to those comparisons where there is the necessary correlation between the grievance and ET1.

The claims have been remitted to the same Employment Tribunal for that assessment.  This decision will affect vast numbers of claims currently in the Tribunal system.

A copy of the full decision can be viewed by clicking here.

Disclaimer

The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.

© MacRoberts 2011

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