Birch & Ors v Walsall Metropolitan Borough Council & Ors UKEAT/0121/10/JOJ

Appeal against decision by the ET that a group of claimants bringing an equal pay claim had not complied with Step 1 of the Statutory Grievance Procedure, so the ET was unable to hear their complaint. Cross appeal against a ruling that a second group of claimants had complied with the SGP. Appeal succeeded and cross appeal dismissed.

Two groups of women wrote to their employer, maintaining that they had been discriminated against, in terms of pay, over many years. Both sets of letters were identical except for the heading, which, in respect of the Type A women read: ‘STATUTORY GRIEVANCE AND QUESTIONS PURSUANT TO SECTION 7B OF THE EQUAL PAY ACT 1970’; and in respect of the Type B group read ‘STATUTORY GRIEVANCE’. The respondent appeared to accept both letters as grievances submitted pursuant to the Statutory Grievance Procedures (SGP) and suggested that the modified statutory procedure be used to deal with the grievances. However, they then resisted the claims and requested a pre hearing review to determine the issue of whether the claimants had indeed complied with the SGP. The Employment Judge held that, although the information contained within the Type A letter was sufficient to amount to a statutory grievance, it did not constitute a grievance because it contained, within the heading, the words relating to questions pursuant to s7(B) of the Equal Pay Act 1970. According to Regulation 14 of the 2004 Regulations, those questions shall not constitute a statement of grievance. Type B letters were deemed to have complied with the SGP.

At the EAT the respondent employer relied upon the decision in Holc-Gale, where the claimant had served on her employers a questionnaire form in accordance with s7(B) of the Equal Pay Act. This was found not to comply with the SGP because the questionnaire was not sent as a grievance: indeed the claimant was unaware of the need to raise a grievance. However the judge found there to be a factual distinction between that case and the present. Both Type A and Type B documents were sent as statutory grievances in accordance with the SGP and the respondents dealt with them and responded to them as statutory grievances. The judge rejected the submission that if any s7(B) questions are included in the SGP compliant letter, the entire document is not in compliance with the SGP. Instead, the correct approach was to regard the Type A document as serving a dual purpose and to exclude only the questions from constituting the Step 1 grievance. The judge added that it could not have been Parliament’s intention to deny women the right to exert their right to equal pay by interpreting the regulations in an overly legalistic manner.

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Appeal No. UKEAT/0121/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 & 14 May 2010

Judgment handed down on 10 September 2010

Before

THE HONOURABLE MRS JUSTICE COX

(SITTING ALONE)

MISS D M BIRCH & 99 OTHERS (APPELLANTS)

(1) WALSALL METROPOLITAN BOROUGH COUNCIL

(2) HOUSING 21 LTD

(3) SODEXO HEALTHCARE SERVICES LTD

(4) PINNACLE HOUSING LTD (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellants MR PHILIP ENGELMAN (of Counsel) Instructed by: Messrs Stefan Cross Solicitors Buddle House Buddle Road Newcastle upon Tyne NE4 8AW

For the Respondents MR TIMOTHY KERR QC & MR SHABBIR LAKHA (of Counsel) Instructed by: Walsall Metropolitan Borough Council Legal Services The Civic Centre Darwall Street Walsall WS1 1TP

**SUMMARY**

EQUAL PAY ACT

JURISDICTIONAL POINTS – 2002 Act and pre-action requirements

The question in this appeal and cross-appeal was whether women bringing equal pay claims, in multiple public sector litigation, were to be prevented from pursuing their claims because of an alleged failure to comply with Step 1 of the statutory grievance procedure (SGP). The Employment Judge held at a PHR that one category of Claimants (Type A) was so prevented. Each of them had sent to her employers a grievance document which was held not to comply with the SGP because, although it was headed, in part, "Statutory Grievance" and contained statements of complaint sufficient to comply with a Step 1 grievance, some questions or requests for information from the employer were also included in the same document. Regulation 14 was held to invalidate the entire document. The judge distinguished Type B Claimants, who had submitted exactly the same document, save for its heading, and whose claims were permitted to continue.

The Claimants' appeal, in respect of the Type A Claimants, was allowed. The Respondents' cross-appeal, in respect of the Type B Claimants, was dismissed.

The EAT held that Holc-Gale did not decide that regulation 14 applied to shut out the Type A or Type B Claimants in the particular circumstances of this case. The Employment Judge below was wrong to distinguish the documents on the basis of their headings. The matter should be addressed as a matter of substance, not form. The grievance documents submitted, which preceded the submission of pro forma Equal Pay Act questionnaires, and which had initially been treated by the Respondents as grievances complying with the SGP, were held to be dual purpose documents, so that questions outlawed by regulation 14 were excluded, and the remainder of the grievance, accepted as otherwise SGP compliant, was upheld as a valid grievance.

**THE HONOURABLE MRS JUSTICE COX**
  1. The issue in this appeal is whether women who have brought equal pay claims are to be prevented from pursuing those claims because they failed to comply with Step 1 of the Statutory Grievance Procedure (SGP) contained in the Employment Act 2002 and the Employment Act 2002 (Dispute Resolutions) Regulations 2004 (2004 Regulations).
  1. This statutory procedure, which has now been repealed but was still in force at the relevant time in this case, has been the subject of both extensive litigation and extensive criticism. Some of the criticism has concerned the arcane disputes, and occasionally arbitrary results, which flowed from the application of the relevant statutory provisions. The Employment Tribunal's decision in this case, and the nature of the arguments advanced before me on appeal, over the course of one and a half days, provides ample support for such criticisms.
  1. The Employment Judge, on a pre-hearing review held at Birmingham on 8 December 2009, decided that one group of women (identified as the Type A Claimants) had failed to comply with Step 1 of the procedure and were prevented from pursuing their claims. Those Claimants contend on appeal that her decision was wrong in law. However, another group of women (the Type B Claimants) were found to have complied with Step 1, so that they were entitled to pursue their claims. The Respondents now contend, in their cross appeal, that the decision in respect of the Type B Claimants was wrong.
  1. Essentially the same issues arise in both the appeal and cross appeal. Mr Engelman, appearing for the Claimants, submits that the Judge erred in her application of domestic law in respect of the Type A Claimants. Given her findings in respect of the Type B Claimants, which he submits were correct, the Judge's reasons for distinguishing the Type A Claimants are said to be unsustainable. Further, to the extent that it is necessary for him to do so, he relies upon EU law, submitting (a) that the relevant statutory provisions are not in compliance with EU law; or alternatively (b) that the matter is sufficiently unclear to warrant a reference to the Court of Justice of the European Union for determination as to their compliance with EU law.
  1. Mr Kerr QC, for the Respondents, submits that the Judge's decision on the Type A Claimants was legally correct, as a matter of both domestic and EU law, but that her reasons for distinguishing the Type B Claimants were erroneous, and that the cross appeal should therefore be allowed.
**The Relevant Facts**
  1. The context for this debate is the large number of claims being brought by women employed in the public sector, in jobs being carried out predominantly by women, who say that they have been discriminated against, in terms of pay, over many years, and who are now bringing claims in which they seek equal pay for work of equal value, or for work rated as equivalent, with male comparators employed in jobs being carried out predominantly by men.
  1. The Claimants in this case are part of a large, multiple equal pay claim against the Respondents. All the Claimants are or were, at some point, employed by Walsall Council. Some of them have been the subject of "TUPE transfers" to the Second, Third and Fourth Respondents, but nothing turns upon that in the present appeal. The Claimants in this appeal are all represented by Messrs Stefan Cross, Solicitors, although other Claimants who are also represented by that firm are not affected by the issue arising here.
  1. At the Employment Tribunal the Claimants were categorised as Type A (141 claimants) or Type B (106 claimants), in a schedule agreed by the parties, according to which one of two "grievance documents" each Claimant had sent to the Respondents before lodging her Tribunal claim.
  1. Before lodging their claims with the Tribunal each of the Type B Claimants had sent a written, two-page statement to the Respondents dated 4 June 2008. Headed "STATUTORY GRIEVANCE" it read as follows:

"1. EQUAL PAY – JOB RATED AS EQUIVALENT OR EQUAL VALUE

a. I am not paid the same as men doing jobs rated either the same or lower than me, in that my hourly rate for all normal hours worked is less than the hourly rate for the men, taking into account all monetary payments to them for normal hours worked. The comparators I rely upon are men employed in the following posts in my grade and below. Please let me have a list of the men doing these jobs pursuant to section 35 (2) of the Data Protection Act and their terms and conditions 2000 to date.

GRADE MW1 CLAIMANTS- Road Sweeper MW1

Gardener MW1

GRADE MW2 CLAIMANTS- All of the above PLUS

Gardener MW2

Refuse Collector MW2

Storekeeper

Labourers

GRADE MW3 CLAIMANTS- All of the above PLUS

Gardener MW3

Public Lighting Attendants

Driver Labourers

Roadworker 1

Gravedigger

Housing caretaker

Security attendant/porter

Sewer operative

GRADE MW4 CLAIMANTS (and APT&C claimant's scales 1 and 2)

All of the above PLUS

Refuse Drivers

Gardener Supervisors MW4

Glazer

Driver 2

Waste disposal operative

Roadworker 2

GRADE MW5 (and APT&C scales 3 and above)

All of the above PLUS

Gardener 4

Roadworker 3

Social services driver

Attendant

Painter

b. I SEEK DISCLOSURE OF THE SCORES AND GRADES FOR ALL POSTS EVALUATED UNDER ANY JOB EVALUATION SCHEME including the white or blue book and the Green Book. I may add comparators based on this information.

c. I do not receive the same basic or overtime payments at the same hourly rate as the men. None of these schemes is based on performance but is either guaranteed or attendance related. In both cases the Court of Appeal in Degnan v Redcar Council held that such payments were to be treated as part of basic pay. This means that my basic pay and all rates based on basic pay are less than the men.

d. The burden is on YOU to explain whey the men get this and I do not. This has never been explained to me.

e. ONCE IT IS AGREED THAT THE MAN GETS MORE PAY THEN ME THE BURDEN OF PROOF IS ON YOU TO SHOW THE REASON FOR THE DIFFERENCE – PLEASE SPECIFY YOUR CASE.

f. YOU MUST SHOW THAT THE REASON IS NOT TAINTED WITH SEX DISCRIMINATION – WHAT IS YOUR CASE AND YOUR EVIDENCE ON THIS POINT?

g. YOU MUST SHOW THAT THE REASON IS OBJECTIVELY JUSTIFIED – WHAT IS YOUR CASE ON THIS POINT?

h. YOU MUST SHOW THAT THE JUSTIFICATION IS NECESSARY – WHAT IS YOUR CASE ON THIS POINT?

i. YOU MUST SHOW THAT YOU HAVE CONSIDERED THE DISPARATE IMPACT BETWEEN MEN AND WOMEN – WHAT IS YOUR CASE ON THIS POINT?

2. EQUAL PAY – GREEN BOOK

a. I believe that you have carried out evaluations under the GREEN book but you have kept these secret. I contend that I am entitled to know the outcomes of the evaluations. THIS INFORMATION IS BEING CONCEALED.

b. You have failed to carry out an equal pay audit – if you have, please disclose a copy.

c. You failed to carry out job evaluations and implement a new pay structure as promised."

  1. A month earlier, on 1 May, each Type A Claimant had sent a statement which was identical to this one in every respect, save as to the heading, which read "STATUTORY GRIEVANCE AND QUESTIONS PURSUANT TO SECTION 7B OF THE EQUAL PAY ACT 1970".
  1. It appears that the Respondents accepted and dealt with both of these documents, including those submitted by at least some of the Type A Claimants, as grievances submitted pursuant to the SGP. In letters sent in response, dated 17 June 2008 and 11 September 2008, headed "Re: Statutory Grievances" the Second Respondent confirmed "receipt of the following grievances" and included a list of the Claimants' names. Walsall Council responded by letter dated 18 July 2008, headed "Grievances". In this letter they stated "the Council does not accept the claims made in your grievances as per the attached schedule" and suggested that, since the Claimants there identified were no longer employed by the Council, the modified statutory procedure should be used to deal with the grievances. This letter was therefore said to represent "the response required under Step 2 of the modified procedure." Subsequently, by letter of 29 September 2008, Walsall Council repeated their view that the modified grievance procedure applied; notified the Claimants' solicitors that some of the Claimants had already had a grievance hearing on 4 September 2008; and invited other Claimants to a grievance hearing to be held on 13 October 2008.
  1. In correspondence dated 10 June 2008 the Claimants' solicitors separately sent to Walsall Council some Equal Pay Act Questionnaires in the prescribed form, on behalf of both Type A and Type B Claimants, examples of which appear in the appeal bundle. A list of some 37 detailed questions was attached. These were acknowledged by Walsall Council on 23 June and responded to, in respect of some of the Claimants, by letter of 8 October 2008.
  1. In their Claim Forms subsequently submitted to the Tribunal each Claimant, referring to their earlier grievance documents, stated that they had previously sent a written complaint to the Respondents. The Respondents, in response forms resisting the claims, requested a pre-hearing review (PHR) to determine, amongst other things, "the issue of the failure of the Claimants to raise grievance (sic) and the failure to comply with section 32 of the Employment Act 2002." The claims were then listed for a PHR.
  1. There were no further details provided by the Respondents as to the basis for their allegation of a failure to raise grievances. The Claimants argued below that regulation 32(6)(b) of the 2004 Regulations requires respondents to set out the basis of their case on non-compliance, in order to be allowed to raise it before the Tribunal with a view to ousting jurisdiction to hear the claims. The Employment Judge rejected this argument stating that, although no particulars had been given, the Respondents had "put down a marker" in their response forms that section 32(2) was in issue. She therefore held that the Respondents were entitled to argue that both the Type A and Type B Claimants had failed to comply with Step 1 of the SGP. There is no appeal against that finding.
  1. It is convenient at this stage to refer to the relevant legislation. Section 32 of the Employment Act 2002 provides, so far as relevant, as follows:

"32 Complaints about grievances

(1) This section applies to the jurisdictions listed in Schedule 4.

(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.

(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)."

It is common ground that complaints about equal pay under section 2 of the Equal Pay Act are listed in Schedule 4, so that section 32(2) applies to these Claimants.

  1. The relevant part of Schedule 2, headed "Statutory Dispute Resolution Procedures" is Part 2, under the heading "Grievance Procedures". Chapter 1 relates to the standard procedure. Under "Step 1: statement of grievance", by paragraph 6 "the employee must set out the grievance in writing and send the statement or a copy of it to the employer."
  1. The 2004 Regulations provide, so far as is material, as follows. By regulation 2(1) the word "grievance" is defined as:

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

  1. Regulation 2(2) provides:

"(2) In determining whether a meeting or written communication fulfils a requirement of Schedule 2, it is irrelevant whether the meeting or communication deals with any other matter (including a different matter required to be dealt with in a meeting or communication intended to fulfil a requirement of Schedule 2)."

  1. Regulation 14 provides:

"14.-

(1) Where a person aggrieved questions a respondent under any of the provisions set out in paragraph (2), those questions shall not constitute a statement of grievance under paragraph 6 or 9 of Schedule 2.

(2) The provisions referred to in paragraph (1) are-

section 7B of the Equal Pay Act 1970;

section 74 of the Sex Discrimination Act 1975;

section 65 of the Race Relations Act 1976;

section 56 of the Disability Discrimination Act 1995;

regulation 33 of the Employment Equality (Religion or Belief) Regulations 2003;

regulation 33 of the Employment Equality (Sexual Orientation) Regulations 2003."

  1. Section 1(1) of the Equal Pay Act 1970 provides 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 deals with a number of situations including (i) where the woman is employed on like work with a man with the same employment, (ii) where the woman is employed on work rated as equivalent with that of a man in the same employment and (iii) 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.
  1. Section 2(1) 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."

  1. Section 7B of the Act was added by section 42 of the Employment Act 2002. It provides, so far as is material:

"7B Questioning of employer

(2) 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, the Minister shall by order prescribe-

(a) forms by which the complainant may question the respondent on any matter which is or may be relevant, and

(b) forms by which the respondent may if he so wishes reply to any questions.

(3) Where the complainant questions the respondent (whether in accordance with an order under subsection (2) above or not), the question and any reply by the respondent (whether in accordance with such an order or not) shall, subject to the following provisions of this section, be admissible as evidence in any proceedings under section 2(1) or 7A(3) above.

(4) If in any proceedings under section 2(1) or 7A(3) above it appears to the employment tribunal that the complainant has questioned the respondent (whether in accordance with an order under subsection (2) above or not) and that-

(a) the respondent deliberately and without reasonable excuse omitted to reply within such period as the Minister may by order prescribe, or

(b) the respondent's reply is evasive or equivocal,

it may draw any inference which it considers it just and equitable to draw, including an inference that the respondent has contravened a term modified or included by virtue of the complainant's equality clause or corresponding term of service."

The Equal Pay (Questions and Replies) Order 2003 sets out, in Schedules 1 and 2, prescribed forms for use by a complainant wishing to question a respondent and a respondent wishing to reply.

  1. The Employment Judge observed that this "questions procedure" is envisaged as being used as "a precursor to potential litigation", although this need not always be the case. I shall return to this below.
  1. After referring to the parties' submissions, and to relevant case law, the Employment Judge concluded as follows. Firstly, in relation to the Type A Claimants, she found that:

"The information provided in the Type A document (and indeed the Type B document for that matter) was sufficient to amount to a statutory grievance for the purposes of Section 32(2) … a proposition which I did not understand to be disputed by the Respondents."

Later on in her judgment she concluded expressly that:

"…the Type B document amounted to a grievance as defined by Regulation 2(1) of the Dispute Resolution Regulations and the appellate case law (which did not appear to be disputed by the Respondents)."

  1. She also accepted that the Respondents had corresponded with the Claimants, in respect of these documents, in terms indicating their recognition and acceptance of them as statutory grievances. However, she concluded that regulation 14 was unequivocal in its terms, and that it prevented questions asked under section 7B of the Equal Pay Act from constituting a statement of grievance.
  1. Referring to the heading of the Type A document, she said that it was:

"…reasonable to assume that a document heading is intended to disclose its purpose."

She found it to be "quite clear" from the heading that the Type A document had a dual purpose, namely it was intended both to be a grievance and "to invoke the questions procedure under Section 7B." She concluded, however, that regulation 14 did not allow for that possibility; and she regarded herself as bound by the decision of the Employment Appeal Tribunal in Holc-Gale v Makers UK Limited [2006] ICR 462. The Type A Claimants in the present case, she held, could not distinguish themselves from the claimant in Holc-Gale.

  1. This reasoning, she concluded, had the "unfortunate consequence" that regulation 14 operated to prevent the document from being a statutory grievance. With some reluctance she therefore concluded that the Type A Claimants had failed to comply with section 32(2) and that the Tribunal was prevented from hearing the claims brought by these women. Had she concluded that regulation 14 permitted a document to serve a dual purpose then she would have held that the Type A document amounted to a grievance, as defined by regulation 2(1).
  1. In relation to the Type B Claimants the Judge rejected the Respondents' argument that, notwithstanding the heading, the Type B document amounted in substance to a questionnaire, that is to questions asked under section 7B; and that the fact that the document could also fall within the definition of grievance, as provided by regulation 2(1), did not assist the Claimants. She held that:

"The logic of that argument is that any grievance document which poses questions cannot constitute a grievance for the purposes of Step 1 of the statutory grievance procedure if it concerns a complaint made under any of the equalities legislation. I did not think that could have been the intention of Parliament."

  1. She concluded that it was quite clear from its heading that the Type B document was intended to be a statutory grievance. She continued:

"… the fact that the title clearly identified it to be a statutory grievance, and did not identify it as being intended to ask questions for the purpose of Section 7B of the Equal Pay Act, was sufficient to remove the Type B document from the ambit of Regulation 14 and from the scope of the decision in Holc-Gale. I also concluded that the Type B document amounted to a grievance as defined by Regulation 2(1) of the Dispute Resolution Regulations and the appellate case law (which did not appear to be disputed by the Respondents). Consequently I accepted that the Type B Claimants had complied with Step 1 of the statutory grievance procedure, and that the Tribunal was not prevented from hearing those complaints."

  1. Referring to the unsatisfactory outcome, as a result of the differing consequences for the two groups of Claimants, the Judge attributed this to the "highly technical approach of the dispute resolution legislation (coupled with its drafting)".
  1. The remainder of her judgment was then concerned with the arguments presented to her on the compatibility of section 32(2) and regulation 14 with EU law; and whether there should be a reference to the EU Court on this issue. She dealt in some detail with the principles of effectiveness and equivalence, before concluding that neither the section, nor the relevant regulation, was incompatible and that a reference was not required.
**The Appeal and Cross Appeal**
  1. The general principles which emerge from the authorities on interpretation of the statutory grievance procedure (SGP) are well established and are not in dispute here. Thus:

(a) It is important to refrain from approaching the question of whether or not an employee has complied with the SGP in an unduly technical way, and it would be quite wrong to require the grievance to be made in an unduly legalistic or technical manner – Canary Wharf Management Limited v Edebi [2006] ICR 719 at paragraph 24.

(b) In considering whether there has been compliance with Step 1 the Tribunal should focus on substance not technicality. Employers should know where they stand but, in providing employers with that knowledge, the threshold to be crossed by employees should not be set high and should not place in their way unduly legalistic obstacles – Francis v Kennedy Scott Limited – UKEAT/0204/07/DM. The objective of the statute can be fairly met if the employers, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being raised – Canary Wharf at paragraph 25.

(c) In relation to the requirement in paragraph 6 there is "considerable flexibility" about the "form of the grievance" – Canary Wharf at paragraph 20. The statutory requirements are minimal in terms of what is required – Shergold v Fieldway Medical Centre [2006] ICR 304, at paragraph 30.

(d) It is not necessary to make it plain in the writing that it is a grievance or is an invocation of a grievance procedure, so long as it is a complaint made about action taken or to be taken by the employer - Shergold at paragraph 33 and Galaxy Showers Limited v Wilson [2006] IRLR 83, at paragraph 10.

(e) What must be guarded against is that the legislation creates its own hostage to fortune and introduces an entirely and unintended result of creating undue technicality and over-sophistication, which can result in problems for both sides, and in particular where the employee is at risk of being barred from the judgment seat entirely – Shergold at paragraphs 27-28.

  1. In addition to these principles, Mr Engelman relies in particular in this case on the recent decision of the Court of Appeal in Suffolk Mental Health Partnership NHS Trust v Hurst and Others: Sandwell MBC v Arnold and Others [2009] IRLR 452. This is, I agree, an important case, given that the Court was there considering the SGP in the context of multiple, public sector equal pay claims.
  1. The specific question raised in that case was whether it was sufficient, by way of a statement of grievance under paragraph 6 of Schedule 2 for the purposes of section 32(2), for the Claimants simply to inform the employer that the claim is brought under the Equal Pay Act 1970. Answering that question in the affirmative and dismissing the employer's appeal, the Court of Appeal held that, to require particularisation in advance of the negotiation encouraged by the 2002 Act in such a context would often be to create a substantial obstacle to claims before Employment Tribunals, which Parliament cannot have intended.
  1. Mr Kerr rightly points out that the Court was not there concerned with regulation 14, or with the specific issue arising in the present case. However, a number of the Court's observations seem to me to be of general application and importance, in particular in the context of litigation concerning fundamental rights to equality of treatment and pay at work for men and women.
  1. In this respect, following a question from myself regarding the relevant international instruments and the fundamental nature of the right to pay without discrimination, Mr Engelman referred in argument to the obligation placed on member states of the International Labour Organisation, by Article 2.1 of the Equal Remuneration Convention 1951 (Number 100), to "ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value." It is worth recalling that our Equal Pay Act owes its life, at least in part, to the United Kingdom's compliance with its international obligations in relation to equal remuneration. The Act, although not brought into force until 1975 and not, at first, providing for equal pay for work of equal value, was passed before the United Kingdom's entry into the EC. It followed considerable pressure upon the Government of the day to ratify Convention 100, recognised as one of the fundamental rights conventions guaranteeing equality between men and women at work. This Convention was then ratified by the United Kingdom in 1971.
  1. In Suffolk the following conclusions in the judgment of Pill LJ, with whom the other members of the Court agreed, are of particular importance in the present case:

(1) "The 2002 Act has the admirable purpose of discouraging the precipitate issue of proceedings and encouraging negotiation, conciliation and settlement … That purpose may, however, be frustrated if the procedure leads to satellite litigation on technical issues about whether a statement amounts to a grievance under paragraph 6 and whether a claim subsequently made to a tribunal is the same claim as was included in the statement of grievance."

(2) "The continued failure in parts of the public sector, notwithstanding the 1970 Act, to pay women equally with men is well documented and publicised and, on the evidence, I find it unsurprising that the claimants in these cases had at least suspicions about their unfavourable treatment in this respect. I am prepared to take judicial notice of the public concern about failure fully to implement provisions of the 1970 Act. Elias J referred [2009] ICR 281, para 80 of his judgment in the present cases, to the context of equal pay, that is of "widespread claims in local government". The claimants were entitled to explore the position. The issue is best dealt with by negotiation between representatives of employees and the employers but progress in this field has been sufficiently slow to make attempts to seek redress through the tribunal system on occasions legitimate."

As Mr Engelman points out, awareness of the general situation, as referred to here, would apply equally to Walsall Council and the TUPE transferees concerned in the present appeal.

(3) "The procedures involved in assessment under the 1970 Act are complex as evidenced by the several potential methods of comparison under section 1(2) of the Act (para 12 of this judgment). They may involve substantial inquiry and analysis. An employee is most unlikely to have the necessary information, or the facilities with which to obtain it, unless there is full co-operation from the employer."

(4) " …the statutory language does not suggest that an elaborate statement is required. Section 32 requires compliance with paragraph 6 or 9 of Schedule 2. Paragraph 6 requires only that the grievance is set out in writing. Not even the basis for the claim need be stated … further particulars will normally be expected during stage 2 but failure to provide them does not have the same draconian effect as failure to comply with step 1."

(5) "The case management powers available to tribunals by reason of the Equal Value Rules of Procedure, including provision for a "stage 1equal value hearing", do not support the view that a technical approach should be adopted to the manner in which the procedure had been initiated."

(6) "The power to increase or to decrease damages, under section 31 of the Act, is consistent with Parliament's intention to encourage negotiation and discourage the precipitate issue of proceedings but throws little light on what must be done to initiate the procedure under section 32."

  1. Having regard to these and other factors, including the general principles to which I have already referred, Pill LJ agreed with the conclusion of Elias J, below, that only the minimum requirement is necessary when raising a statement of grievance; and that it is enough, to satisfy the SGP, for the claimant to indicate that she is pursuing an equal pay claim. This construction, as Elias J held, is supported by considerations of policy. Claimants in such cases, who will often be litigants in person, would otherwise be 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.
  1. In agreeing with Pill LJ, Lord Justice Wall pointed out that the nature of the arguments being advanced in these cases meant that the essentially worthy aims of Employment Tribunals, to be fora for ordinary working people to bring claims for swift and straightforward resolution, were in "grave danger of being frustrated by both over-elaborate and sophisticated arguments unintelligible to the layman." He ended his judgment with a plea for lawyers to "strive for clarity and simplicity" and for unions and employers to "strive to make the system work in the interests of ordinary working people."
  1. Against that background I return to the issues arising in this case. In support of his submission that Suffolk was not about regulation 14, and was therefore of limited assistance to the Claimants, Mr Kerr referred to the Employment Appeal Tribunal's decision (Elias J) in Alitalia Airport SpA v Akhrif [2008] ICR 813. He placed particular reliance upon a passage in the judgment where regulation 14 is referred to. I have therefore considered this case carefully, but, in my view, it does not in any way detract from the statements of general principle in Suffolk. Nor does it assist the Respondents in the present case.
  1. This case, the facts of which are complex, was not concerned at all with regulation 14, but with collective grievances and the impact of regulation 9 of the 2004 regulations. Three of the claimants had lodged pro-forma questionnaires under the Employment Equality (Age) Regulations 2006, following a collective grievance submitted by their trade union. In the course of his judgment Elias J considered, theoretically, the three possible ways, on the facts, in which these three claimants might be deemed to have complied with the statutory requirement to lodge a grievance in time. The first was by being associated in some way with the collective grievance. The second was by being deemed to have lodged their own grievance in their own name. The third was by having lodged a grievance through the union representative as their agent (on which point the claimants eventually succeeded). Having rejected the first of these methods of compliance, Elias J said this at paragraph 50 in relation to the second, and it is upon this passage that Mr Kerr seeks to rely:

"Can the three be said to have lodged their own grievances? On the face of it, it might have been thought that they could since they have presented the employer with a questionnaire which in terms identifies that grievance. However, the claimants accept that that is not sufficient. The reason is that regulation 14 provides in terms that where a person aggrieved questions a respondent under various statutory provisions, which include the 2006 Regulations, 'those questions shall not constitute a statement of grievance under paragraph 6 …' Moreover, the regulation cannot be circumvented by contending that the grievance identified in the preamble to the questions can be treated as not being part of the questionnaire itself: see Holc-Gale v Makers UK Ltd [2006] ICR 462."

  1. However, we are not concerned here with whether a prescribed, pro-forma questionnaire can be said to amount to a statement of grievance. Such questionnaires were submitted in this case, but subsequent to and separately from the documents with which this appeal is concerned, which, as the Judge held, contained statements such as to amount to a statutory grievance and which were, in fact, more detailed in content than Suffolk suggests is required in order to satisfy the SGP.
  1. It is not in dispute that both the Type A and Type B documents contained questions, as well as statements of complaint about equal pay, but the extent to which that affects the application of regulation 14 and the case of Holc-Gale was not argued before, or considered by, Elias J in Alitalia. Indeed, the claimants appear to have conceded the point as it arose in that case, and there was therefore no analysis of regulation 14 in this context. In my view this case does not assist Mr Kerr.
  1. Nor does the decision of the Employment Appeal Tribunal (Underhill J and members) in Burns v Killgerm Group Limited UKEAT/0548/08/CEA, dated 2 February 2009, on which Mr Kerr also sought to place reliance.
  1. The issue in that case was whether the raising by the claimant of a complaint in a county court defence and counterclaim, in response to a claim for training costs brought against her by her former employers, could constitute the making of a complaint for the purposes of the SGP. The Employment Appeal Tribunal decided that it could not.
  1. The facts were unusual. Part of the claimant's defence and counterclaim involved a contention that, if the costs could be recouped against her, then she should have been paid the same as other male managers with whom she had worked; and that she would be pursuing an equal pay claim. She sent her former employers a prescribed, pro-forma Equal Pay Act Questionnaire. It was common ground that the claimant had not, on any previous date, raised any equal pay claim with her employers. Its genesis was simply as a response to the county court claim brought against her.
  1. The claimant subsequently brought an equal pay claim before the Tribunal. She relied on service of the questionnaire as constituting compliance with the SGP. However, as the Employment Appeal Tribunal noted, the claimant conceded at the Tribunal hearing that the questionnaire could not itself constitute the raising of a grievance, by reason of regulation 14, which the Employment Appeal Tribunal described as "self-evident", such a questionnaire being "essentially part of a litigation process".
  1. The issue before the Employment Appeal Tribunal was therefore not that point, which the claimant had conceded, but whether passages in her defence and counterclaim constituted the statement of grievance for the purposes of paragraph 6. Unsurprisingly, in my view, the Employment Appeal Tribunal took the view that a complaint made in a county court pleading could not satisfy the SGP, given the context in which it was made, which took it outside the employer-employee relationship altogether.
  1. In my view this decision too cannot assist Mr Kerr. Further, both Burns and Alitalia pre-dated the Court of Appeal's decision in Suffolk which, if it has not quite "changed the legal landscape" as Mr Engelman submits, has provided a clear and principled approach to compliance with the statutory grievance requirements in the context of equal pay claims such as those in the present case.
  1. That, therefore, is the approach I shall adopt here. Further, both counsel agree that the issue cannot be resolved by reference to the title of each document. It is therefore common ground that the distinction drawn by the Employment Judge in respect of the Type B document cannot be sustained. The question is to be resolved as a matter of substance, not of form.
  1. Both documents are identical in content. They clearly contain a number of statements, which complain about a lack of equal pay with named male comparators. The Employment Judge found that the information contained in these statements, in both the Type A and Type B documents, was sufficient to amount to a grievance for the purposes of section 32(2). She noted that the Respondents did not in fact dispute this.
  1. In addition, each Claimant has included with her complaint a number of questions, or has made a number of requests for information. Such requests are made in the final sentence of paragraph 1(a), in 1(b) and in requests for the Respondents to specify their case in response to each statement made at 1(e) to (i). One further question is asked in the final phrase of the sentence at paragraph 2(b), relating to the Green Book.
  1. As the Employment Judge rightly observed, grievances raised by people at work will frequently include questions about their treatment. Before the arrival of Section 7B of the Equal Pay Act, it was usual for questions to be raised in grievances submitted in respect of equal pay. This is a difficult and sensitive area, for both employees and employers. A lack of transparency, or the secrecy which often surrounds information relating to employees' remuneration, means that employees may simply not know whether they have, or may have, a complaint about equal pay. An employee will often need to request information, in order to find out if her complaint, or suspicion, may be merited. Experience has shown that employers sometimes rely on the Data Protection legislation, as the basis for refusing access to what is regarded as confidential information, when requests for that information are included in grievances. Potential comparators may be unwilling to consent to its release. Delays frequently occur in obtaining that consent, or in receiving either confirmation, or a denial that any named comparator is earning more than the employee who has presented the grievance. As the Court of Appeal rightly recognised in Suffolk, an employee is unlikely to have the necessary information about pay, or even to be able to obtain it, unless there is full co-operation by her employer.
  1. In my view, the admirable purpose of the statutory grievance procedure referred to in the authorities, namely to encourage negotiation and conciliation and to resolve disputes without recourse to litigation, cannot be fulfilled if the employee does not have the information necessary to inform her even whether there is, or may be, a dispute to be resolved.
  1. Section 7B of the Act, also introduced by the Employment Act 2002, was recognised as the response to concerns which had been expressed about the difficulties for employees in gaining access to information of this kind from employers. It was, thus, a measure introduced to help women, or men, to secure information relevant to equal pay issues. Whilst a questionnaire can be, and often is, a precursor to litigation, requests for information of this kind can also amount simply to a genuine attempt to obtain information about, or understand, remuneration differentials, without any thought of litigation.
  1. It would be strange indeed if, in the equal pay context, any document which both contains complaints sufficient to comply with Step 1 of the SGP and includes in addition some questions or requests for information about pay, is to be prevented from constituting a grievance for the purposes of Step 1, thereby ousting jurisdiction to hear any subsequent claim. Like the Employment Judge below, I do not consider that this can have been the intention of Parliament in introducing, in the same legislation, a procedure meant to assist a complainant to obtain information about pay from her employer, and the means of ousting jurisdiction to determine her claim altogether if she chances to request such information at the same time as presenting an otherwise SGP compliant grievance, and indeed in the same document.
  1. The particular context for deciding the question in this case is therefore a document which, in part, complies with the requirements of the SGP, and seeks, in addition, information to enable each Claimant to understand whether she may have a valid complaint. Further, the Respondents initially acknowledged, and dealt with, these documents as grievances which complied with the statutory procedure, arranging meetings and confirming that the modified procedure should apply. There was, therefore, provision for negotiation and discussions of the kind envisaged by the legislation.
  1. Mr Kerr points out, correctly, that this did not prevent the Respondents from taking the point subsequently before the Tribunal. However, the fact that the Respondents initially accepted and dealt with these documents as SGP compliant grievances forms part of the context in which the question in this appeal is to be resolved.
  1. Whilst, in multiple litigation of this kind, it may be legitimate for the Respondents to seek at this stage to "knock some of these cases out", as Mr Kerr expressed it, on the basis of the Respondents' duty to safeguard taxpayers' money, the effect is that a number of women who presented their equal pay claims within the relevant limitation period may now find themselves time-barred, and therefore unable successfully to pursue fresh claims following accepted compliance with the grievance requirements. Further, the delay, even for those who may subsequently be permitted to pursue fresh claims, will adversely effect their entitlement to back pay if their claims are ultimately successful.
  1. Is this, nevertheless, what regulation 14 requires? Mr Kerr submits that it is.
  1. On behalf of the Claimants Mr Engelman submits that I should construe both documents as classic, "dual purpose" documents, which both make SGP compliant complaints and also include some questions or requests for information relating to those complaints. He therefore invites me, in the context of this case, to interpret regulation 14 literally, so as to exclude only those questions which are outlawed by regulation 14, and to leave the SGP compliant statements intact, as constituting valid statutory grievances. Mr Kerr submits that this is impermissible and that regulation 14 cannot be interpreted in this way, relying on the decision in Holc-Gale.
  1. Support for the proposition that, in general, an SGP compliant grievance can be contained in a document which is also written for another purpose is to be found in a number of authorities.
  1. In Shergold, where the grievance was contained in a letter of resignation, the Employment Appeal Tribunal said that they were satisfied that:

"There is nothing in the terms of paragraph 6 itself which prevents the grievance being set out in a document which also doubles as something else … that is [also] made quite clear by the definition section at regulation 2(2) of the 2004 regulations."

  1. In Canary Wharf the Employment Appeal Tribunal emphasised that there is considerable flexibility as to how a grievance is raised, whether, for example, in a resignation letter or a letter written after dismissal or in a communication from the claimant's solicitor in correspondence dealing with other issues. As Elias J said:

"It matters not that other issues are raised at the same time as the complaint, whether additional complaints or otherwise (see regulation 2(2))."

  1. In Burns Underhill J repeated this point, emphasising that the way in which the grievance is expressed is immaterial and that:

"It does not matter in principle … that it is raised in a document which is expressed as being for some other purpose."

  1. In Holc-Gale the claimant served on her employers a prescribed questionnaire form in accordance with Section 7B of the Equal Pay Act, completing sections 1 and 2 of the form with a summary of her reasons for believing that she had not received equal pay with named male comparators, before asking a number of questions in connection with her claim.
  1. The Employment Tribunal held that she had not raised a grievance as required by section 32(2). The statements made in sections 1 and 2(A) of the questionnaire formed the basis for the questions which followed and, by virtue of regulation 14, could not constitute a statement of grievance. They found as a fact that, at the time when the claimant sent the statutory questionnaire, she was unaware of the need to raise the grievance. The questionnaire was not sent as a grievance. It was found to have been sent in order to ascertain whether the claimant had a claim under the Equal Pay Act and, if so, how to formulate that claim.
  1. There is therefore a clear, factual distinction between that case and the present. Miss Holc-Gale did not know that she needed to submit a grievance and clearly served her statutory questionnaire as a precursor to the litigation she commenced shortly afterwards. Although she subsequently sought to rely upon the questionnaire as constituting her grievance the Tribunal found that the questionnaire was not sent as a grievance.
  1. In the present case, however, both documents were sent as statutory grievances, in accordance with the SGP, by Claimants well aware of the need to send them. Further, the Respondents dealt with them and responded to them as statutory grievances. They were found by the Employment Judge to contain complaints which were sufficient to comply with the SGP.
  1. The Employment Appeal Tribunal dismissed Ms Holc-Gale's appeal. In argument the claimant's solicitor, Mr Pike, sought to draw a distinction between the statements made by the claimant at sections 1 and 2(A) in the standard questionnaire form and the questions that followed, submitting that the latter were caught by regulation 14 whereas the former were not.
  1. The Employment Appeal Tribunal rejected this argument, concluding:

"16 Whilst the contention raised by Mr Pike is plainly arguable we are persuaded by Mr Over that the policy behind regulation 14 is to exclude the statutory anti-discrimination questionnaire procedure altogether from the statutory definition of grievance. The prescribed questionnaire form, although not mandatory, is headed 'The complainant's questions to the respondents'. The summary at section i and identification of comparators at section 2(a) is a necessary foundation for the specific questions which follow. Those initial statements are, in that sense, part of the questions which follow. The word 'questionnaire', although habitually used to describe the information gathering procedures under the discrimination statutes, does not in fact appear in those statutes. Thus section 7B of the Equal Pay Act 1970 speaks of questions, plainly envisaging that the standard form procedure in its totality is to be treated as questions by the complainant. It is in that context that we read regulation 14 of the 2004 Regulations. It is plainly directed to the whole of the questionnaire procedure."

  1. Mr Engelman submits that this decision, and the construction given to regulation 14, was wrong. In addition to the EAT's reasoning sitting uneasily with the principles established in Suffolk, he submits that no consideration at all was given to the "dual purpose document" approach sanctioned by the authorities. The law report indicates that no cases were referred to in the judgment, and that none was cited or referred to in the arguments presented.
  1. Further, he submits that the EAT's decision ignores the reality of the situation, in that the employee was, in fact, giving her employer an opportunity to discuss matters with her, via service of the questionnaire, and the employer must therefore have understood her complaint, in sections 1 and 2(A) of the prescribed form, as a grievance.
  1. In my view, whilst I see some force in these submissions, it seems to me that it is unnecessary to resolve that question in this case, which on its facts gives rise to different considerations. Some of the Claimants in the present case did serve Equal Pay Act Questionnaires in the prescribed form, but they are not the focus of this appeal. They were served subsequent to, and separately from, the documents which are under scrutiny. Those documents were intended and described as statutory grievances, containing complaints found to comply with the statutory requirements, and dealt with as such by the Respondents, but which also contained some questions or requests for information.
  1. Mr Kerr submits that since, by virtue of section 7B(3), it is unnecessary for a complainant to use the prescribed questionnaire form in order to question her employer, the effect of regulation 14 and Holc-Gale is that, if any section 7B questions are asked of her employer, even if included in an otherwise SGP-compliant grievance, which is dealt with as such by the employer, the entire document is not in compliance with the SGP and there is therefore no jurisdiction to determine her claim.
  1. I am not persuaded that this is the law. Nor am I persuaded that the EAT decided in Holc-Gale that this was the law. If it were it would lead, as it did in this case, to exactly the sort of arcane and sterile disputes, wholly unintelligible to the layman, which the courts have repeatedly emphasised are to be avoided in this area.
  1. Looked at substantively, which both counsel agree is the correct approach, how are we to determine in any case whether questions or requests for information included with SGP compliant grievances about equal pay are questions asked pursuant to section 7B? The section is broadly drafted, referring to questions on "any matter which is or may be relevant" to assist the complainant in deciding whether to institute proceedings, but even Mr Kerr did not suggest that every question asked by a complainant in a grievance document would be caught by section 7B.
  1. In the course of argument he gave a number of hypothetical examples of questions asked by a complainant in her grievance, which would not be caught by regulation 14. These included, for example, a "rhetorical question", e.g. "If you're such a good employer, why are you paying me less than X who is a man? I'm aggrieved and would like you to do something about it"; or "I'm aggrieved because I am being paid less than a man. What are you going to do about it?" He further submitted that a complainant who raises a grievance stating "this is not a statutory questionnaire, but why am I paid less than X?" would be a valid grievance, whereas a complainant who omitted that first, introductory phrase and simply asked the question would be likely to fall on the wrong side of the line and be caught by regulation 14.
  1. He rightly acknowledged the difficulties in construing such words in the abstract, but fine distinctions of this kind are in my view indicative of the absurd results which could follow, if the arguments of the Respondents in this case are right, and a woman who fails to choose her words carefully or to ensure that any question she poses in her grievance is rhetorical, may find herself wholly unable to have her subsequent claim for equal pay determined. The answer to the question whether a woman is to be driven from the judgment seat entirely cannot depend on whether she has written in her grievance the words: "I am being paid less than Mr X and don't understand why", rather than: "I have an equal pay complaint. Why am I being paid less than Mr X?"
  1. In an area where working people are seeking to understand their employers' reasons for pay differentials, this seems to me to be a good example of the over-sophistication and technicality which the case law has emphasised is to be avoided, in particular in the field of equal pay, as Suffolk confirmed. Whilst this is a case in which lawyers are involved on both sides, these provisions are intended to work for both lawyers and litigants in person, who will be drafting their own grievances, complaining about, and often simultaneously trying to elicit information about, rates of pay and other elements of remuneration which they consider may have resulted in discriminatory differentials.
  1. Legalistic and unedifying debates of this kind are avoided if it is recognised that documents of the kind being considered in this appeal are capable of fulfilling two functions, namely both containing a grievance which complies with the requirements of the SGP and asking questions pursuant to section 7B, to elicit information which is only in the possession of the employer. Since, by regulation 14, questions asked pursuant to section 7B cannot constitute a statutory grievance, those questions are to be excluded from the document, in deciding whether there has been compliance with the SGP, but if the grievance otherwise complies with Step 1 of the procedure, then the statutory requirements have been fulfilled.
  1. This is achieved by recognising the dual purpose of documents such as those in the present case, and interpreting regulation 14 as excluding only the questions from constituting the Step 1 grievance. That, in my judgment, is the correct approach in this case. It also ensures that the Draconian effect of denying a remedy to a woman seeking to assert her fundamental right to equal pay at work, which I am entirely satisfied was not what Parliament intended in the circumstances of this case, is avoided.
  1. This, dual purpose approach to the documents, having regard to the particular context in this case, also accords with the reality. Both the Type A and the Type B documents were held, otherwise, to satisfy the grievance requirements and the documents were initially regarded as such by the Respondents. The complaints made, and the information provided, by each of the Claimants in her grievance was in fact far more detailed than the Court of Appeal held in Suffolk was necessary in order to comply with the SGP. Both sides were legally represented and understood exactly the issues being raised. No-one was misled. The grievance process should not become a trap for the unwary, or unnecessarily technical or complicated. The questions or requests for information made in both these documents are easily excised, leaving the remaining statements intact, and thereby compliant with the SGP.
  1. For these reasons I find that the Employment Judge erred in finding that the Type A Claimants had failed to comply with Step 1 of the SGP, by virtue of regulation 14. The Tribunal therefore has jurisdiction to determine their claims. Her decision in relation to the Type B Claimants was correct, though for the reasons I have given, rather than owing to the distinction she drew between the documents from their respective headings.
  1. In these circumstances, I consider that it is unnecessary for me to deal with Mr Engelman's interesting, alternative submission, relying on Taylors Fashions Ltd v Liverpool Victoria Trustees Co. Ltd [1982] 1 QB 133 (Oliver J), and the principle of estoppel by convention, namely that the Respondents are estopped from asserting that either grievance document is invalid. In any event, Mr Kerr submitted that this point was not taken below, and that no compelling reason had been shown for permitting counsel to raise it now. In my view I do not need to resolve it.
  1. Further, in view of the conclusion I have reached on domestic law, I shall not further lengthen an already lengthy judgment by considering the parties' respective, detailed submissions on EU law. Mr Engelman's contentions as to the non-compliance with EU law of section 32(2) and regulation 14 are strongly contested. Resolving this dispute seems to me to be entirely unnecessary in the circumstances; and it is most unlikely to benefit jurisprudence in any way, in an already heavily litigated area of the law.
  1. For the reasons I have given this appeal is therefore allowed, and a finding that there is jurisdiction to determine the Type A claims is substituted. Similarly, the cross appeal will be dismissed.

Published: 10/09/2010 14:19

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