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Appeal No. UKEATS/0005/10/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 24 June 2010

Before

THE HONOURABLE LADY SMITH

(SITTING ALONE)

EAST DUNBARTONSHIRE COUNCIL (APPELLANT)

(1) TRADE UNION BACKED CLAIMANTS

(2) STEFAN CROSS (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR G MITCHELL (Solicitor)
Messrs MacRoberts Solicitors
152 Bath Street
Glasgow
G2 4T

For the First Respondent
MR BRIAN NAPIER QC (of Counsel)
Messrs Thompsons Solicitors
Berkeley House
285 Bath Street
Glasgow
G2 4HQ

For the Second Respondent
MR B McLAUGHLIN (Solicitor)
Instructed by:
Messrs Stefan Cross Solicitors
Buddle House
Buddle Road
Newcastle Upon Tyne
NE4 8AW

EQUAL PAY ACT – Article 141/European law

PRACTICE AND PROCEDURE - Amendment

Employment Tribunal granted Claimants' applications to amend their equal pay claims to add new comparators to their existing lists. Two of the Claimants having left the Respondent's employment more than six months prior to their claims being amended, time bar would have prevented them from raising fresh claims. On appeal, the Respondent's case that the Employment Judge had no discretion in the light of the time bar position was rejected. However, she had erred in rejecting the Respondent's argument that they were prejudiced by not having had the opportunity to seek to resolve the claims involving the new comparators at grievance stage and had approached matters on the basis that the Respondent's point could be met by reducing any compensatory award on the grounds of the Claimants' failure to comply with the statutory grievance procedure. Section 31 of the Employment Act 2002 **would not have allowed for such a reduction in the circumstances of these cases. The claims were, accordingly, remitted to the same tribunal to consider the amendment applications of new.

1. This is an appeal from the Judgment of an Employment Tribunal sitting at Glasgow, Employment Judge Frances Eccles, registered on 18 November 2009, allowing the Claimants' applications for leave to amend their claims so as to add new lists of comparators to their existing lists.

1. There are two sets of Claimants, referred to, as has become standard practice in the Employment Tribunals, as "Trade Union backed Claimants" and "Stefan Cross" Claimants. Schedules containing the names of the individual claimants were attached to the Employment Tribunal Judgment. For convenience, I propose to continue to refer to the Claimants in the same manner as did the Employment Judge. I will also continue to refer to the employers as "the Respondent".

1. Before the Tribunal, the Respondent was represented by Ms F Ross, solicitor, and by Mr G Mitchell, solicitor, before me. The Trade Union backed Claimants were represented by Mr S Gorton, barrister, before the Tribunal and by Mr Napier QC before me. The Stefan Cross Claimants were represented by Ms C Fox, solicitor, before the Tribunal and by Mr B McLaughlin, solicitor, before me.

1. All Claimants had presented forms ET1 setting out equal pay claims in which they claimed that they had been carrying out **work of equal value to males employed by the Respondent but had been paid less than them. Their forms contained lists of comparators. The earliest of the claims was presented in May 2006 and all claims were being managed together by January 2007.

1. On 20 January 2009, at a case management hearing, the Claimants were directed to confirm whether or not they sought leave to amend their claims to add further comparator posts, the matter evidently having been raised in discussion before the Tribunal. The Trade Union Claimants presented an application to amend on 31 March 2009. The Stefan Cross Claimants presented an application to amend on 3 April 2009.

1. Two of the Trade Union Claimants had left the Respondent's employment more than six months before 31 March 2009.

1. The Respondent lodged written objections to the applications to amend and a pre-hearing review was fixed to consider the issue. The Respondent's objections included that, if the applications were granted, that would involve them in significant and irrecoverable additional costs and the need to allocate additional resources to responding to them in circumstances where those resources were already stretched on account of subsisting equal pay claims. Also prejudicial was, in their submission, that if the new comparators were allowed to be added, it would mean that the Respondent had been deprived of the opportunity of seeking resolution of the Claimants' complaints in respect of them, outwith the tribunal system, at the stage of the statutory grievance procedure that then applied.

1. The Claimants' case was that the addition of new comparators did not amount to a new cause of action and even if it did the Tribunal should exercise its discretion so as to allow the amendment the applications for which followed there having been an exchange of correspondence about the correct job title of comparator posts. No explanation seems to have been given for the lateness of the identification of additional comparators nor of why the existing lists of comparators were not adequate for the Claimants' purposes.

1. The Respondent does not suggest that, in any of these cases, section 32 of the Employment Act 2002 applies so as to bar the Claimants from their pursuit of their claims.

1. The Employment Judge referred to Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore [1996] ICR 836, The Highland Council v TGWU & others [2008] IRLR 272, Cannop & others v The Highland Council [2008] IRLR 634, Redcar & Cleveland Borough Council v Bainbridge [2008] IRLR 776, and Potter & others v North Cumbria Acute Hospitals NHS Trust UKEAT/0385/08/CEA.

1. In the light of her reading of the authorities, she reached a series of conclusions in the present case which can be summarised as follows:

• In principle, a Claimant is entitled to add new comparators to an equal pay by way of amendment;

• The addition of a new comparator to an equal pay claim amounts to a new cause of action;

• If the two Trade Union backed Claimants who had left the Respondent's employment more than six months prior to 31 March 2009 had sought to raise fresh claims naming the new comparators, they would have been time barred, but that did not mean that she was obliged to refuse them leave to amend; if a Claimant sought to add a new cause of action out of time then the Tribunal had to consider that matter in the exercise of its discretion and also to consider whether any time limit should be extended;

• The timing of the applications to amend were not such as to amount to grounds for refusing them;

• The Respondent would be able to seek a reduction in any compensatory award in the light of the new comparators not having featured in the statutory grievance procedure;

• The prejudice to the Respondent would, in all the circumstances, be significantly less than that which would accrue to the Claimants who would not be able to advance their claims in full.

1. As regards the ability of the Respondent to secure a reduction in compensation, the Employment Judge stated:

"33. Similarly, I do not accept the respondents' argument that the application to amend should be refused because, without knowing the identity of all of the claimant's comparators, they have been denied the opportunity to resolve the claim outwith the Tribunal proceedings. It is not in dispute that the respondents have known from the outset of the proceedings that the claimants' grievance is about equal pay. It is not suggested by the respondents that had they known about the additional comparators that the claimants' Grievance would have been resolved and the claim avoided. Failure on the part of a claimant to refer to particular comparator in her Grievance, resulting in the respondents being prevented from understanding or resolving her complaint in advance of Tribunal proceedings can be the subject of a reduction in any compensatory award that might be made to the claimant."

1. For the Respondent, Mr Mitchell submitted that the Employment Judge had no discretion regarding the application to amend in the case of the two Trade Union backed Claimants who had left the Respondent's employment more than six months before 31 March 2009. The fact that if they had been fresh claims they would have been time barred meant that the application to amend had to be refused. He relied on Harvey v Port of Tilbury London Ltd [1999] IRLR 693, Ryan & others v Taylorplan and others [2001] UKEAT/826/99/0504, Cook v Clarke [2003] EAT/0070/03/TM, and Duffin v Deloitte and Touche Wealth Management Limited UKEAT/0435/03/MAA, in support of his submission. He, equally, recognised that in Potter, it had been noted that there was a tension amongst the authorities on the matter and that in TGWU v Safeway Stores Ltd [2007] UKEAT/0092/07/0606, the current President of the Tribunal, Underhill J, had said that the fact that a claim that was sought to be added by amendment did not bar the exercise of the Tribunal's discretion. He also drew attention to the fact that in Preston and others v Wolverhampton Healthcare NHS Trust and others [2001] IRLR 237, it had been held that time limits in equal pay cases did not of themselves offend Article 141 of the EC Treaty.

1. As a subsidiary to his submission that the Tribunal had erred in failing to recognise that it did not have a discretion, Mr Mitchell submitted that the Employment Judge's reasoning was not "Meek" compliant (Meek v City of Birmingham District Council [1987] IRLR 250).

1. Mr Mitchell's second submission was that the Employment Judge had erred in her conclusion at paragraph 33 that the failure to include the new comparators in her original section 32 grievance letter could give rise to a reduction in compensation. The statutory provisions did not support that conclusion. The failure to include the new comparators in the original grievance was relevant to a consideration of whether or not to allow the amendment: Evershed v New Star Management [2009] UKEAT/0249/09/3107.

1. In response Mr Napier submitted that it was wrong to suggest that the Employment Judge had no discretion in respect of the claims that would have been time barred if presented as fresh claims. He referred to the Safeway case and Enterprise Liverpool Ltd v Jonas & others [2009] UKEAT/0112/09/2407 **in support of that submission. It was evident from the judgment as a whole that the Employment Judge had applied the correct test.

1. Regarding the issue of whether or not it would be open to a Tribunal to reduce compensation under section 31 of the 2002 Act **on grounds of failure to name all comparators in the grievance letter, after discussion and consideration, Mr Napier very properly accepted that the Employment Judge had fallen into error on that matter and that there would require to be a remit.

1. Dealing with the Respondent's grounds of appeal in reverse order, as I have noted, Mr Napier accepted that the Employment Judge had erred in the section 31 matter. He was right to do so. Section 31(2) of the 2002 Act **provides for an adjustment to compensation only where the relevant statutory procedure applies to the claim and "was not completed before the proceedings were begun". In the case of an employee's compliance with the statutory grievance procedure that means that he must have set out his grievance in writing, informed his employer of the basis for his grievance before the grievance meeting and have taken all reasonable steps to attend the meeting (Schedule 2 Part 2). The Claimants had complied with the grievance procedure that was required in the period prior to the presentation of these claims. The date of presentation of the claims is the point in time at which compliance is to be judged. By that date, they had given written intimation of having a grievance that they had not been receiving equal pay in their respective posts and provided lists of those male employees with which they sought to compare themselves. They had also, I understand, informed their employer of the basis for their grievance and it was not suggested that they had failed to take reasonable steps to attend a grievance meeting. The fact that, later, they sought to add new comparators could, accordingly, never meet the statutory criteria for a reduction in compensation on grounds of failure to complete the grievance procedure prior to presentation of their claims.

1. As regards the first ground of appeal, I am not satisfied that it is well founded. The Employment Judge may, given her summary of the relevance of time limits at paragraph 23, have overlooked the fact that in the case of equal pay cases, there is no discretion to extend the six month time limit (Equal Pay Act 1970 s.2ZA) but I did not understand Mr Mitchell to suggest that that fact alone would show she had erred in failing to refuse amendment of the two claims that would have been time barred if newly presented. She may also have thought that the import of what I said in the Highland Council **case was that claimants are always entitled to amend their equal pay claims to add new comparators; that is certainly not what I intended and I had not thought that that would be read into my discussion at paragraphs 33-34. Again though, I did not understand that point to be the focus of this ground of appeal.

1. The central issue was, rather, that of whether or not the Employment Judge had a discretion notwithstanding that those claims would, if new, have been time barred. Notwithstanding the approach adopted in the cases of Harvey, Ryan, Cook and Duffin, I am of the clear view that there is no rule of law that if an amendment would, if presented as a fresh claim, be time barred, then it cannot be allowed. I agree with the clear and careful reasoning of Underhill J in the Safeway case. I do not accept that the fact that limitation would operate, of itself, precludes amendment. It is plainly a relevant factor which could, potentially, carry substantial weight. It may, depending on the circumstances of the individual case, be such as to persuade the Employment Judge that the amendment should not be allowed but that is a different matter. In considering whether or not to allow such an amendment, an Employment Judge is exercising the discretion conferred by paragraph 10(2)(q) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004** and the fact that there is a limitation issue does not convert that discretion into a direction to refuse any such application.

1. It is evident that the Employment Judge placed what appears to have been significant weight on her erroneous belief that it would be possible to reduce compensation to allow for the lateness of intimation of the new comparators. Her decision on the applications cannot, accordingly, stand. I will pronounce an order upholding the appeal, setting aside the Judgment of 18 November 2009 allowing the Claimants to amend their claims and remit these claims to the same Employment Judge to consider the applications to amend, of new.