Brett & Ors v Hampshire County Council UKEAT/0500/08/JOJ

Appeal against decisions that the ET did not have jurisdiction to hear claims under the Equal Pay Act 1970 as the claimants had not complied with the appropriate statutory grievance procedure for the purpose of section 32 (2) of the Employment Act 2002 (since repealed as from 6 April 2009). In relation to 3 decisions, the appeal succeeded. The 4th decision was upheld.

The first issue concerned the grievance statement and the claim advanced in the ET. The grievance statement included 4 comparators and so did the claim, but 2 of the comparators were different from the ones in the grievance statement. The EJ held that in those circumstances section 32 had not been complied with in relation to the entirety of the claim.

Secondly, the claimants made a mistake with their job title when completing the grievance statement and claim form. On the question of whether the grievance statement and the claim form could be amended the Judge dismissed the claim and commented:

T'he problem ... is that whilst it may be possible to amend a claim form, if the grievance had correctly recited the correct title of the claimant, that option is not possible where both grievance and claim form are inaccurate in respect of the claimant’s job status.  I do not consider it is possible to retrospectively amend a grievance form, and as a consequence, even if one were to amend the claim form that claim would not relate to the matters recited in the grievance. '

The third issue related to 4 male claimants lodging equal pay claims in anticipation of a successful claim being brought by a female colleague. The judge concluded that there had been no hint of any prospective or contingent claims on the part of the male claimants and an amendment to the claim would not enable it to relate to an earlier grievance.

Finally, the EJ considered the issue of a grievance, which was subsequently withdrawn, and whether it could be revived without any written documentation. He concluded that it could not.

On the first issue the EAT allowed the appeal stating that:

'even if a complaint to the Tribunal or a grievance document brings together more than one comparison, the correlation issue must be considered in respect of each comparison separately'

On the second point, the EAT decided that, if the error in the grievance statement was corrected before the date of issue of proceedings, the claim could be amended and heard. This issue was remitted back to the Tribunal.

On the third issue, the EAT held that it was perfectly plain that the claims brought by the male employees were “piggy-back”, or contingent, claims using as comparators the other female Claimants doing the same job.

Finally, on the 4th point, the EAT judge said

'I have no difficulty with the proposition that a grievance that has been withdrawn may be revived, but in my judgment it would subvert the entire regime of the 2002 Act and the Regulations – which fundamentally depend on grievances being stated in writing – if a grievance which had been unequivocally withdrawn could effectively be revived without any document to that effect.'


Appeal No. UKEAT/0500/08/JOJ


At the Tribunal
On 25 January 2010




Transcript of Proceedings



For the Appellants MS MELANIE TETHER
(of Counsel)
Instructed by:
Messrs Thompsons Solicitors
Congress House
Russell Street
London  WC1B 3LW

For the Respondent MR JOHN BOWERS
(One of Her Majesty’s Counsel) and
(of Counsel)
Instructed by:
Hampshire County Council
Athelstan House
St Clements Street
Hampshire  SO23 9DR
JURISDICTIONAL POINTS:  2002 Act and pre-action requirements
Four points arising out of the application of section 32 of the Employment Act 2002 in a series of related equal pay multiples.


(1) In a case involving the modified grievance procedure, where the Claimant in her grievance had identified four jobs but had in her eventual claim identified two of those jobs but also two which were different, she was entitled to pursue her claim in so far as it relied on comparison with the former but not the latter: each individual comparison gives rise to a distinct claim.  Cannop v Highland Council [2008] IRLR 634 referred to.

(2) A Claimant cannot rely on a “collective grievance” under reg. 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 if the statement relied on raises a grievance in relation to a different job from that which she was in fact doing.  But a mistake of this kind can be corrected prior to the issue of proceedings.

(3) It was sufficiently apparent that male claimants identified in a collective grievance statement were advancing “piggyback” claims, even though that was not spelt out in the statement itself.

(4) A grievance that had been withdrawn could only be reinstated in writing.


1. This appeal arises in the context of a series of related equal pay “multiples” brought against Hampshire County Council by employees in a number of different categories.  At present only the claims brought by the employees in the largest of those categories – broadly described as “home carers”, although it may cover also certain associated jobs – are proceeding.  They number some 200.

2. Between 30 June and 4 July 2008 Employment Judge Kolanko, sitting in the Southampton Employment Tribunal, heard a number of issues relating to whether particular Claimants or groups of them had complied with the appropriate statutory grievance procedure for the purpose of section 32 (2) of the Employment Act 2002.  There were other issues before him but they are not relevant for present purposes.  He reserved his judgment, which was sent to the parties, with his written Reasons, on 1 September 2008.  The issues which he had to decide were denoted by letters of the alphabet.  I have to consider appeals by the Claimants against his decisions on issues B, D2, G and I: in each case he held that the Claimants in question had not complied with the appropriate procedure and accordingly that the Tribunal had no jurisdiction.  I need not take time to explain why the appeal has taken so long to reach a full hearing.

3. The Claimants have been represented before me by Ms Melanie Tether of counsel and the Respondents by Mr John Bowers QC and Mr Dale Martin.  I am grateful to all three for their helpful skeleton arguments and to Mr Bowers and Ms Tether for their succinct and effective oral arguments.

4. I will take the four issues in turn.

5. The great majority of the Claimants claimed compliance with the requirements of section 32 by relying on regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, which deals with what are colloquially known as “collective grievances”.  I will set out its terms in due course.  This issue, however, concerns a single employee who did not do so, Mrs Brett.  She relied on a grievance lodged on her behalf by her union representative on 2 January 2007.  Since she was no longer in employment she asked for the grievance to be dealt with under the modified grievance procedure provided for at Chapter 2 of Part 2 of Schedule 2 of the 2002 Act; and the Council agreed.  That meant that it was necessary for her in her written grievance statement to give the “basis” of her grievance.  In that respect the modified procedure differs from the standard procedure provided for at Chapter 1, which requires the employee only to “set out” the grievance, allowing the “basis” to be supplied later.  That difference is evident from the words of the statute, but it has in any event been confirmed in three decisions of this Tribunal – Canary Wharf Management Ltd v Edebi [2006] ICR 719, City of Bradford Metropolitan District Council v Pratt [2007] IRLR 192 and Riley v First Choice Homes Oldham Ltd (UKEAT/0051/08).

6. For present purposes the only point that I need note about Mrs Brett’s grievance statement is the description of the “comparator posts” on which she relied.  These were identified as “Mobile Library Assistant”, “Basic Technician”, “Storeman Driver” and “Weighbridge Test Operator”.

7. The grievance was not resolved, and in due course Mrs Brett commenced proceedings under the Equal Pay Act 1970 as part of one of the multiples to which I have referred.  In the ET1 in which she was included the comparator posts were identified as follows (I include the description given and the grade): “Storeman Driver SC3000”, “Technician SC2/3”, “Mobile Library Driver/Assistant SC3000” and “Mobile Library Driver/Assistant SC4000”.  The last two of those jobs, although they have the same title, apparently have different contents – whence the difference in grade – although counsel have not been able to explain to me what the differences are.

8. It is of course well-established in the case-law in relation to these unlamented provisions that for the purpose of section 32 the complaint identified in a grievance statement must be the same as, or substantially similar to, the complaint advanced in the Employment Tribunal proceedings: see, for example, in the context of the modified procedure, the formulation adopted by Elias P at paragraph 33 in Riley.  This is generally described as “the correlation principle”.  It was accepted by the Judge that, of the four posts identified in the ET1, the first two had been the subject of Mrs Brett’s original grievance.  But the second two had not, because neither “Mobile Library Driver/Assistant SC3000” nor “Mobile Library Driver/Assistant SC4000” is the same as the job of “Mobile Library Assistant” to which she had referred in that grievance.  Again, nobody was able to tell me precisely what the difference is, but it is clear from the job title that the latter job does not involve driving.  The Judge held that in those circumstances section 32 had not been complied with in relation to the entirety of the claim, or claims, brought by Mrs Brett.  At paragraph 47 of his Reasons he said this:

“My findings reveal that the grievance letter identifies comparators as mobile library assistant, basic technician, storeman driver.  The comparators cited in the claim form were storeman driver SC3000, technician SC2/3, mobile library driver assistant SC3000, mobile library driver/assistant SC4000.  I was informed by the respondent, and no issue was taken by the Claimants, that there is in fact a job of mobile library assistant, which is quite distinct from mobile library driver/assistant.  I have been referred to the authorities of City of Bradford MDC v Pratt [2007] IRLR 192 and Riley v First Choice Homes Oldham Ltd UKEAT/005/08.  Following the guidance of the President in the Riley case paragraphs 35 36, I am satisfied that the basis of claim identified in the grievance was not the same claim or substantially similar to that lodged with the tribunal.  I therefore find in relation to this issue in favour of the respondent.”

9. The primary submissions of both Ms Tether and Mr Bowers were to the effect that the Judge was right to approach the question before him, as he plainly did, by taking the pleaded claims on the one hand, and the grievance contained in the letter of 2 January 2007 on the other, as a whole and making some kind of overall assessment as to whether they could be said to be “substantially similar to one another”.  Ms Tether said that on that approach the Judge should have held that they were indeed substantially similar, and Mr Bowers said that he was right – or in any event made a legitimate assessment – in holding that they were not.

10. Ms Tether, however, had a fall-back submission to the effect that each comparison had to be considered separately.  On that basis she accepted there was indeed no correlation of the necessary kind between the claim to comparison with the two Mobile Library Driver/Assistant jobs on the one hand and the claim to comparison with the Mobile Library Assistant job on the other; and accordingly that that latter claim could not be pursued.  But she submitted that the claims based on the other two comparisons could proceed.  Mr Bowers accepted that that would follow if the premise was right, but he contended that it was wrong.

11. In my judgment Ms Tether’s alternative approach is the correct one in law.  Analytically, each claim by reference to a different comparator is a different claim (or a different cause of action, as it is sometimes put).  This was held by Elias P in this Tribunal in Redcar and Cleveland Borough Council v Bainbridge (no. 2) [2007] IRLR 494: see at paragraph 125 (page 505), effectively adopting the submissions of counsel at paragraph 116 (page 504).  That reasoning seems to have been upheld in the Court of Appeal: see [2009] ICR 133 at paragraph 261 (page 205).  In the light of those decisions, the point was noted as having been common ground – but with the evident endorsement of this Tribunal, chaired by Slade J – in Potter v North Cumbria Acute Hospitals NHS Trust (no. 2) [2009] IRLR 290, at paragraphs 37-40 (pages 905-906).  In my judgment it follows that, even if a complaint to the Tribunal or a grievance document brings together more than one comparison, the correlation issue must be considered in respect of each comparison separately.  That reading also gives a fair result, and one which limits the extent to which these provisions lay trip wires for unwary claimants (to use the vivid metaphor of Elias P in Riley, paragraph 40).  The policy behind the Regulations is that employers should be given the chance to examine, and if possible resolve, an employee’s grievance before it becomes necessary to resort to proceedings.  In relation to the two jobs of Storeman Driver and Technician, Mrs Brett’s grievance document gave the Council that opportunity.  There is no good reason why her – or her union’s – error in relation to the description of the mobile library jobs should operate as a bar to her proceeding with quite different claims.

12. Mr Bowers submitted that, whatever might or might not be its merits in principle, that conclusion was not open to me because of the reasoning of the Inner House of the Court of Session in Cannop v Highland Council [2008] IRLR 634, and in particular because of the terms of the order which the Inner House made when remitting the issues to the Employment Tribunal:  the terms of that order have to be obtained by reading together paragraphs 15 and 33 of the judgment, at pages 638 and 641-642 respectively.  I do not accept this.  I agree that it appears from the nature of the non-correlation between the pleaded complaints and the grievance statements which was relied on in Cannop that the argument now advanced by Ms Tether could perhaps have been advanced in that case, although the facts are not entirely clear.  But there is in fact no sign that the point was taken; and it is notable that the Lord President went out of his way to emphasise that he was deciding only the issue before him and on the most limited basis possible – see paragraph 30 of the judgment (page 519).  My provisional view is in fact that, if Mr Bowers were right in his primary submission that the entirety of the pleaded comparisons and the entirety of the comparisons referred to in the grievance documents must be lumped together and assessed as a whole, the logical consequence in the Cannop case would have been that no remission was necessary.  But that is no more than a provisional view, and I need not explore it further.  What matters is that the decisions of the higher courts are only authoritative on issues necessarily decided as part of the reasoning of the court.  That is not the case here.

13. For those reasons, I will allow in part the appeal on Issue B and direct that Mrs Brett’s complaint be allowed to proceed insofar as it relies on comparisons with the jobs of Storeman Driver and Technician.

**14. As I have already mentioned, almost all of the Claimants relied not on individual grievances, whether using the standard or the modified procedure, but on regulation 9 (1) of the 2004 Regulations, which provides as follows:

“Where either of the grievance procedures is the applicable statutory procedure, the parties shall be treated as having complied with the requirements of the procedure if a person who is an appropriate representative of the employee having the grievance has
(a)  written to the employer setting out the grievance; and
(b)  specified in writing to the employer (whether in setting out the grievance or otherwise) the names of at least two employees, one of whom is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance.”

UNISON, the trade union representing the Claimants in the present case, was an “appropriate representative” within the meaning of that paragraph.

15. For the purpose of this issue we are concerned with two letters written by UNISON on the basis of regulation 9.

16. The first letter is dated 18 April 2007 and reads as follows:

“I write on behalf of the members detailed in the attached schedule who are employed at Hampshire County Council in accordance with s.32 Employment Act 2002 to raise a formal grievance under the Employment Act 2002 (Dispute Resolution) Regulations 2004.

The members listed in the attached schedule have historically suffered a shortfall in terms of the remuneration that they have received for their work, compared to that of male comparators.  Under the Equal Pay Act 1970, these members are entitled to recover that shortfall, backdated to six years with interest.

Unison asserts that these jobs are either rated as equivalent under section 1(2)b of the Equal Pay Act 1970 (the ‘Act’) or of equal value under section 1(2)(c) of the Act to a variety of jobs carried out by male employees of the authority.

My roles are/were the same grade as jobs carried out by a variety of male employees under the Council’s grading scheme introduced by the Council in 1989 under Watson Wyatt.  However male employees in those roles receive or received a higher level of pay for their role.

Further to the alternative the roles of the employees in the attached schedule were of equal value to the jobs carried out by a variety of male employees of the authority.  Unison asserts that such contracts were more favourable in that the comparator roles received a higher rate of salary, additional bonus payments and other remuneration.  This is on the basis that their role has now been rated as equivalent to the comparator roles by previously my role had a less favourable contract.

Unison contends that it is not necessary to name comparators as the essence of the entitlement is the jobs done and the fact that it is only jobs performed principally by men that received these entitlements.

Please note that this letter is written in accordance with regulation 9 of the above mentioned regulations.  I am therefore relieved of the need to take any further steps under the statutory grievance procedure.”

The schedule referred to in the letter identifies 144 employees by their full names, addresses and job titles.  It also gives their start dates.

17. The second letter is dated 29 June 2007.  It is in substantially identical terms to the earlier letter but the schedule which it attaches is different insofar as it is sub-divided into different schedules by job title.  One of those schedules is headed “New Home Carers List” and contains 29 names and full addresses, with the employees’ start dates (and their UNISON membership number where applicable).

18. It is now common ground that sixteen of those described in the earlier schedule as “home carer”, or included in the New Home Carers List scheduled to the second letter, were not doing the job of home carer but were instead doing a job described as “community reablement assistant”.  (“Reablement” is a peculiarly ugly term described in the Oxford English Dictionary as “now rare”: I hope that it becomes not only rare but extinct.)  There was some correspondence between the Council and the union which resulted in the union correcting the job descriptions of some or all of those initially described as home carers.  I shall have to come back to the effect of this correspondence in due course.  Whether or not as a result of that process, of the sixteen who were misdescribed in the schedules, thirteen correctly described themselves by the time that they came to plead their claims as community reablement assistants.  But the remaining three continued to make the same error in the claim form.

19. In the case of these three, it was clearly open to the Council to take a point both about the misdescription in the pleadings – that is, that the Claimant was claiming on the basis that her work for the purpose of section 1 (2) of the 1970 Act was X when it was in fact Y (“the pleading point”) - and that there had been a failure to set out her grievance, as required by regulation 9 (1) (a), because the grievance was presented as one appropriate to a home carer when the employee was not a home carer at all (“the grievance point”).  The parties disagreed before me as to whether both those points were taken before the Tribunal, and it is necessary first to determine who is right about that.

20. The starting point must be the written list of issues prepared for the PHR.  This suggests, if read in isolation, that the Council took only the first of the two points, i.e. the pleading point; and it is common ground that that is the only point taken in the Council’s skeleton argument for the purpose of the hearing.  Mr Bowers drew my attention to a document in Scott Schedule form which was referred to in the list of issues and which, he said, demonstrated that the grievance point was also being taken.  I have to say that it was not clear to me from the passage to which he referred me that that was in fact the case.

21. On the other hand, the Judge in his Reasons focused substantially – and, on a proper analysis, decisively – not on the problem with the pleading but on the problem with the grievance document.  At paragraph 48 of the Reasons, he said this:

“This issue relates to claimants who have cited themselves as home carers on their claim form when it is alleged that they were community reablement assistants.  It appears to be common ground between the parties that the claimants under this category described themselves both in their grievances and in their claim forms as home carers.  Miss Tether has submitted that this irregularity is capable of simple amendment.  The problem with that contention, it seems to me, is that whilst it may be possible to amend a claim form, if the grievance had correctly recited the correct title of the claimant, that option is not possible where both grievance and claim form are inaccurate in respect of the claimant’s job status.  I do not consider it is possible to retrospectively amend a grievance form, and as a consequence, even if one were to amend the claim form that claim would not relate to the matters recited in the grievance.  In view of the evidence which has been adduced before me which universally acknowledges that the role of home carer is significantly different to that of a community reablement assistant, I agree with Mr Bowers the claims of these claimants under this issue fail.”

Although this passage refers to both problems it is clear that the decisive point is the grievance point, because the Judge appears – correctly, in my view – to contemplate that if the problem were only with the claim form it would be capable of being cured by amendment.  And in any event his formal judgment makes it clear that he was finding that the Tribunal had no jurisdiction to hear the claims in relation to which issue D2 arose, which must be a reference to the effect of section 32 (2).  Mr Bowers says that that shows that, whatever may or may not have been said in any written materials before him, the grievance point had clearly been taken in the course of oral argument, which was extensive on issue D2; and it was his clear recollection that that was the case.

22. I am prepared to accept that the grievance point was raised in oral argument, but I also think that the late turn which the argument appears to have taken led to some confusion in the way in which the Judge reasoned in the passage which I have set out.  He was, for example, wrong to say that the Claimants under this category “describe themselves both in their grievance and in their claim forms as home carers”.  Only three had made that error in their claim forms.  Likewise, his reference to Ms Tether submitting that “this irregularity is capable of simple amendment” must surely reflect submissions made about the pleadings, since Ms Tether fully acknowledges – subject to an important point to which I will return – that a defective grievance cannot be cured by amendment.  The confused way in which the argument seems to have developed also led to a further problem with the evidence, to which I will return presently.

23. Despite, as I have said, the Judge’s reference to the problem with the pleadings, the essential question for the purpose of jurisdiction must be whether the misdescription of the Claimants’ job titles in the grievance letters meant that those letters did not “set out the grievance” as required by regulation 9 (1) (a).

24. I have not found that question straightforward.  I see force in the argument that an employee doing a particular job can sufficiently comply with the requirement to set out her grievance by saying “my work [unspecified] is of equal work to that of A or B but I am paid less than them”- though she may not, as a result of the decision of the Court of Appeal in Suffolk Mental Health Partnership NHS Trust v Hurst [2009] ICR 1011, even have to identify A and B.  The employer will of course, once he knows the identity of the complainant, himself know what work she is in fact doing.  It is also apparent from Hurst that the employee does not have to name her comparator, notwithstanding that he is an essential part of the comparison in any claim which she may eventually bring.  That being so, it might be asked why she need identify her own work either.

25. I have, however, come to the conclusion that – whether or not it is necessary for the purpose of a valid grievance that a claimant in an equal pay claim should identify her job – when she does in fact do so and gets it wrong she cannot be said properly to be setting out her grievance for the purpose of the Regulations (or indeed of paragraph 6 of Schedule 2 to the 2002 Act, which uses identical language).  Looking fairly at the purpose of these procedures (however imperfectly that purpose may have been achieved), the intention – as I have already noted – was that employers should be able to investigate an employee’s grievance, and hopefully resolve it, without the need for proceedings.  If the employer is told in terms that the complainant is doing job X, whereas in fact she is doing job Y, he is likely to investigate the comparability of the comparator’s job and job X, and not job Y; and the whole grievance process will go off in the wrong direction.  It could be said that that is unlikely to happen in practice because the employer, knowing what job his employees are doing, will spot the mistake.  But that is not always so, and the risk is particularly high in the case of a collective grievance, where the complainant may be one of a very large number of individuals and the employer is likely, perfectly naturally and properly, to concentrate on the job titles given as a whole.  To take the present case, the Council in conscientiously considering the grievances put in by UNISON on behalf of home carers would investigate and seek to resolve the complaints of home carers – and not any complaint that might be brought by community reablement assistants.  In circumstances where a grievance statement has thus been positively, although no doubt innocently, misleading I do not think that the employee can be said properly to have set out his or her grievance.

26. I appreciate that this conclusion may in some cases have harsh results (though it would not do so if individual employees or their unions use proper care).  I always prefer in dealing with these Regulations to find, if it is available, a construction which avoids the risk of employees losing their claims because of a formal failure.  But there are limits to the extent to which that is possible; and I will not be the first Judge to hold, reluctantly, that the tribunal has no jurisdiction to entertain a claim as a result of what may appear to be a technical error.

27. I have, however, to return to an issue which I parked earlier.  If an employee has initially misdescribed her work in a grievance statement, or had it misdescribed in a collective grievance, there can be no reason in principle why that cannot be put right by an appropriate correcting document, provided that that is done before the issue of proceedings.  Ms Tether says that that is exactly what happened in the present case, in the correspondence to which I briefly referred earlier.  Mr Bowers, however, has shown that in at least one case the correcting letter was written only after the issue of proceedings in relation to the Claimant in question.  It is unclear whether there may not be other such cases.  This point was not investigated by the Tribunal because the correspondence in question was not referred to by Ms Tether.  But I am satisfied that the reason that she did not refer to it was that, in the circumstances which I have already set out, she was not alerted to the way in which Mr Bowers was now, in the alternative, putting the case and which was in the end the basis on which the Judge decided it.

28. In those circumstances the only fair course is for me to allow the appeal on Issue D2 and remit it to the Tribunal to consider, in the case of each of the relevant Claimants, whether, notwithstanding the initial misdescription of their jobs in the schedules to which I have referred, that error was corrected prior to the date of issue of proceedings.  That will be without prejudice to any point that may be available to the Council about the effect of section 32 (3).

**29. The schedules to the collective grievances to which I have referred above contain the names of four male employees.  It is evident they are men not only from their first names but also from the fact they are given the title “Mr”.  The grievance letters themselves, the text of one of which I have already set out, were drafted on the basis that the comparators were all male.  Although none are named, the letter at several points refers to “the male comparators”.

30. The Judge held that for this reason he had no jurisdiction to entertain the claims of the four male Claimants.  At paragraph 54 he said this:

“This issue relates to the four male claimants who have lodged equal pay claims.  It is not in dispute that it is possible for male contingent claims to be brought in anticipation of a successful claim brought by a female colleague (see the Court of Appeal judgment in Preston (No. 1)).  The question arises as to whether such contingent claim was made in the present case.  It is clear from the grievances lodged on 18 April and 23 June 2007 that there is no hint of any prospective or contingent claims on the part of the male claimants.  Indeed such comparisons as were made in the grievances were to male employees and jobs done and performed principally by men.  The subsequent claims brought in June and August 2007 making essentially the same assertions.  As stated earlier an amendment to the claim would not enable it to relate to the earlier grievance.  Accordingly I agree with Mr Bowers that the claims necessarily founder.”

31. I do not accept this reasoning.  I agree that the requirement of regulation 9 (1) (a) that a collective grievance should “set out the grievance” means that the nature of the claim being made should be stated.  It is of course highly desirable that the statement in question should be explicit, but in an appropriate case an element of a grievance may be sufficiently set out even if it is only implicit, though I certainly accept that it must be necessarily implicit (or, to put it another way, obvious).  I see no reason why written grievances should not be construed in the same way as other formal documents, where something stated by necessary implication is treated as effectively stated.

32. The question therefore is whether the nature of the claims of the male Claimants was obvious.  Ms Tether submits that it was.  She submits that it was perfectly plain that the claims brought by the male employees were “piggy-back”, or contingent, claims using as comparators the other female Claimants doing the same job.  Such piggy-back claims have recently been confirmed to be legitimate: see Hartlepool Borough Council v Llewellyn [2009] ICR 1426 (although I am told by Mr Bowers that that decision will be challenged in the Court of Appeal in April).

33. In my judgment, Ms Tether’s submission is correct.  Although arguably it was only recently that (subject to the possibility of appeal) male contingent claims were definitively held to be permissible, they are in no sense a novelty.  They have been a feature of mass equal pay litigation against public authorities (and others) for many years, and there were at least obiter observations in support of their legitimacy in the decision of the Court of Appeal in Preston v Wolverhampton Healthcare NHS Trust [1997] ICR 1899 to which the Judge referred.  Any HR professional presented with a schedule of mostly female equal value complainants, but which contained a handful of male employees, would understand at once what was intended – and if he was in any doubt his legal department would soon enlighten him.

34. Ms Tether sought to reinforce her submission by reference to what she described as “the context”.  She said that the possibility of claims by male employees had already been adumbrated in negotiation between UNISON and the Council, and the claims of the male employees had indeed been included in the costings done by the Council on the impact of the claims.  However, the findings of the Employment Tribunal about this are far from clear and the point does not seem to me to be necessary to her submissions.

35. For those reasons I allow the appeal on Issue G.

36. This is a short point.  One of the Claimants, Mrs Duncan, had been included in a list of employees attached to a collective grievance.  In response to a request from the Council for data protection clearance to investigate her claim, she wrote back as follows:

“I did not fill a form in asking for a grievance regarding equal pay.  I did receive a form saying if I liked I could fill this form in and they would act on my behalf regarding equal pay but I didn’t bother with it and tore it up.  Then I received another letter later saying they’d put a grievance form through about all this.  It also said they presumed I was a carer and ... they’d put my name with the other people who’d made a claim.  Again they presumed I’d filled a form in but I hadn’t.  I do not wish to pursue this as I never did in the first place.”

37. It is common ground that, as Elias P observed in Canary Wharf Management Ltd v Edebi (above) at paragraph 19 (page 723), for the purpose of section 32 (2) a grievance must be “extant”.  The Judge held, plainly correctly, that Mrs Duncan’s letter which I have just quoted meant that her grievance was, if it had ever been valid, withdrawn.

38. It then appears that there were further discussions between Mrs Duncan and a member of the Council’s staff which, Ms Tether contended, evinced an intention to reinstate her claim.  The Judge made no findings about those conversations, but he held that anything that may have been said in the course of them could not be effective to revive the grievance which had been withdrawn, because nothing was said in writing: see paragraph 58 of the Reasons.

39. In my judgment that is plainly correct.  I have no difficulty with the proposition that a grievance that has been withdrawn may be revived, but in my judgment it would subvert the entire regime of the 2002 Act and the Regulations – which fundamentally depend on grievances being stated in writing – if a grievance which had been unequivocally withdrawn could effectively be revived without any document to that effect.

40. I therefore dismiss the appeal on Issue I.

Published: 15/03/2010 18:08

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