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Appeal No. UKEAT/0191/10/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 August 2010

Judgment handed down on 24 September 2010

Before

HIS HONOUR JUDGE SEROTA QC (SITTING ALONE)

G (APPELLANT)

GARDINER & THEOBALD LLP (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant MR SUNGJIN PARK (of Counsel)
(Appearing under the Free Representation Unit)
6th Floor
289-293 High Holborn
London
WC1 7HZ

For the Respondent MR DANIEL TATTON BROWN (of Counsel)
Instructed by:
Messrs Memery Crystal Solicitors
44 Southampton Buildings
London
WC2A 1AP

PRACTICE AND PROCEDURE - Amendment

Although the requirements for what is to be included in a claim form ET1 may be minimalist, there is still a minimum requirement to say what the case is. There must be some specific allegation of a claim within the jurisdiction of the Employment Tribunal or a reference to facts from which the nature of the claim can be reasonably and objectively discerned. In the present case the ET1 failed to identify a claim for Equal Pay.

1. This is an appeal from Employment Judge Sigsworth at a case management discussion held at London Central Employment Tribunal. The judgment is dated 27 August 2009. EJ Sigsworth held that the Claimant's claim form ET1 did not contain a claim for equal pay and if an amendment were sought to add such a claim it would be refused. On 21 December 2009 HHJ Birtles made an order under rule 3(7) of the Employment Appeal Tribunals Rules of Procedure. An amended Notice of Appeal was served and disposed of by HHJ Birtles under rule 3(7) on 21 December 2009. The Claimant made two unsuccessful applications to review the decision of the Employment Tribunal (and the substantive decision on the merits of the balance of her claim, unfair dismissal and discrimination on the ground of sex). On 15 January 2010 the claimant served a further Notice of Appeal.

1. On 16 January 2010 HHJ Richardson disposed of an appeal against the substantive decision of the Employment Tribunal under rule 3(7). He made it clear that the Notice of Appeal related to equal pay rather than sex discrimination, and that the Employment Judges had been correct not to hear a case based on equal pay. HHJ Peter Clark on 2 February 2010 disposed of the revised Notice of Appeal under rule 3(10). The Notice of Appeal relating to the decision of 27 August 2009 came before HHJ McMullen QC on 7 April 2010 on an application under rule 3(10) and HHJ McMullen QC directed that the appeal should go to a full hearing.

1. It is helpful to set out the relevant chronology and factual background. I will omit from this part of my judgment the procedural chronology in the Employment Appeal Tribunal.

1. The Claimant worked for the Respondent, a firm of accountants, and was dismissed by reason of redundancy on 3 November 2008. On 30 January 2009 she presented her ET1 claim form. This included a claim for discrimination on the grounds of sex. It is not contended that there was anything in this claim form that could be construed as a claim for equal pay.

1. On 18 March 2009 the Claimant submitted a further ET1. At page 5 of the claim form, there are printed instructions at 6.1 finds one finds this instruction:

"Please tick the box or boxes to indicate what discrimination (including victimisation) you are complaining about."

There is then a box containing the words "sex (including equal pay)" which the Claimant has ticked. The instructions then go on to ask the claimants to describe the incidents which they believe amounted to discrimination with the dates of those incidents and the people involved. Most of the claim form unquestionably relates to allegations of sex discrimination only, but it is asserted that two passages raise a claim of equal pay.

"Several months ago [X] was seen as the one with the prospect of retaining his job, while I was not mentioned (document available). That was seen even in view of rather serious accounting errors and my constant corrections. Being overlooked by a woman made him unhappy and he needed to be kept happy to the extend [sic] that his demands for paid overtime were met during the redundancy consultation period. At the same time I worked my long hours without a pay. Unlikely mine, his cost belongs to the struggling (UK) part of the firm. To clarify, he was not reporting to me, but I would verify his Central and Eastern European reporting before final version would be released (document available). I can only think, that [X] fitted better into all male Management Team of the European part of business."

1. On page 9 of the claim form, there appears the following:

"To clarify, [X] was paid for his overtime during consultation period (as said in section 6.2) or just before, when Respondent was considering redundancies. This information came from [X] during one of his calls."

1. On 22 April 2009 at a case management discussion, EJ Potter consolidated the two ET1s. He observed that the Claimant's claims of sex discrimination lacked particularity. There was no reference at the case management discussion to an equal pay claim. The Employment Judge gave various directions including one requiring the Claimant to particularise allegations "of her claim of sex discrimination." The case was fixed for a date in July 2009 but had to be adjourned by reason of a lack of judicial resources. On 23 April 2009 the Respondent filed an amended ET3; there is nothing in this document to suggest that the Respondent believed it was facing an equal pay claim. The 2 May 2009 was the last date for bringing an equal pay claim; that is the date six months from dismissal. It is common ground that there is no power to extend the time for bringing a claim for equal pay as there is in claims for unfair dismissal or discrimination. On 6 May 2009 the Claimant filed the schedule, directed to be filed by EJ Potter on 22 April. The schedule does contain certain matters that could possibly be considered to relate to an equal pay claim. However, by now any claim for equal pay was statute barred. On 13 July 2009 the Employment Tribunal gave notice of a case management discussion, inter alia, with a view to clarifying the issues.

1. On 17 July 2009 the CMD took place by telephone with EJ Sigsworth. The purpose of the CMD was to re-list the hearing. It was re listed for the 15 September but by reason of an administrative error on the part of the Employment Tribunal it could not be heard on that date. On 14 August 2009 notice was given of a further case management discussion, inter alia, to clarify the issues. On 21 August 2009 a further case management discussion took place before EJ Sigsworth and the case was listed for a date in November 2009. The Claimant challenged this date. On 25 August 2009 notice was given of a further case management discussion to take place on 27 August. On 27 August the case management discussion took place before EJ Sigsworth. The case was re-listed. As I mentioned in the introduction, EJ Sigsworth held that the ET1 did not include a claim for equal pay and if an amendment was sought to add such a claim it would be refused. It is this decision that is the subject of the appeal.

1. On 7 October 2009 until the 13 October 2009 the hearing of the Claimant's claims for unfair dismissal and discrimination and ground of sex were heard by a Tribunal presided by EJ Lewsey with lay members. The Claimant sought to raise issues of equal pay and the Employment Judge explained to her that she had no locus standi to raise such claims because it had already been determined they were not contained in her ET1.

1. The judgment on the merits was given on 13 October 2009 and the Claimant's claims for unfair dismissal and discrimination on the grounds of sex were dismissed.

1. As I have mentioned there were applications to review this judgment and an unsuccessful appeal to the Employment Appeal Tribunal. There then followed the procedural matters in the Employment Appeal Tribunal to which I have already referred.

1. The Claimant had the good fortune to be represented by Mr Park who appeared on the instructions of the Free Representation Unit. I would like to express my thanks to Mr Park for his very helpful written and oral submissions. I should like to record that he said everything that could be said in support of the appeal. The Judges of the Employment Appeal Tribunal are always grateful to members of the Bar and solicitors who appear through ELAAS and from FRU for the very great assistance they give to persons who would otherwise be unrepresented.

1. Mr Park submitted as follows:

(a) The requirements for contents of an ET1 are minimalist and no more than those required on raising a grievance under the statutory dispute procedures.

(b) There was sufficient information in the ET1 to which I have referred to justify a claim for equal pay. Mr Park did however concede that the claim would have to be particularised.

(c) The Employment Judge should have assisted the Claimant to clarify and particularise her claims at case management discussions.

(d) Mr Park relied upon the decisions in Grimmer v KLM City Hopper UK [2005] IRLR 596, Abbey National Plc v Chagger [2009] IRLR 86 and Ali v Office of National Statistics NOS [2005] IRLR 2001. He also relied on Suffolk Mental Health Partnership Trust v Hurst & Ors [2009] IRLR 12; and

(e) Mr Park submitted that claims for equal pay were excluded from the Sex Discrimination Act. Therefore, he submitted that the Claimant's claim that [X] received overtime payments when she did not and of which she complained in ET1 could not be brought as a sex discrimination claim, so that it could only be brought as an equal pay claim. Mr Park sought to draw an analogy between the required contents of ET1 and of the initial grievance presented by an employee under Schedule 2 of the 2002 Employment Act.

1. The Respondent's submissions are simple. Although the requirements for what is to be included in a claim form ET1 may be minimalist, there is still a minimum requirement to say what the case is. There is nothing in the passages in ET1 that I quoted earlier to justify the suggestion that there is a claim for equal pay.

1. There was nothing to put the Respondent on notice. What was in the claim form is what the Claimant alleged. Accordingly the Employment Judge's decision that the claim form did not include a claim for equal pay was correct. The Claimant's complaint was that [X] received overtime pay and the Claimant did not. She did not assert that he had a contractual entitlement to overtime pay while she did not. The complaint she made was a complaint of discrimination. There was nothing in the ET1 to raise issues either that the Claimant was receiving lesser pay than a male comparator for similar work or (as was not this case) lesser pay for work rated as equivalent. Mr Tatton Brown referred to the relevant provisions of the Sex Discrimination Act 1975, to which I shall refer later. He submitted that the mere fact that there was a reference in the ET1 to pay did not mean that it was a reference to equal pay. Deprivation of benefits was capable of amounting to discrimination on the grounds of sex. Claims could not be brought under the Sex Discrimination Act in respect of benefits regulated by the contract of employment; those have to be subject of an equal pay claim.

1. I refer to authorities on the requirements, the necessary details to be included in a claim form. It is helpful to remind myself that under the Employment Tribunal Rules of Procedure, reg 1(3) requires proceedings to be presented on the prescribed claim form and to contain various pieces of information including:

"(4)(e) details of the claim ".

1. In Grimmer v KLM City Hopper [2005] IRLR 596, the Claimant had issued a claim in the Employment Tribunal. In box 1, which asked her to give the type of complaint she wanted the Tribunal to decide she put down "flexible working" in box 11, which asked her to give details of her complaint she attached the statement which:

"The company's argument refusing my application is based upon my assumption that if they concede to my request, others would be requesting similar/same working arrangement."

1. The Employment Tribunal held that the ET1 contained insufficient details and refused to admit the claim. On appeal to the Employment Appeal Tribunal, HHJ Prophet held as follows:

"14. As to the immediate case before me, Mrs Grimmer had clearly indicated in her claim that she wished to pursue a complaint in respect of flexible working. That is an employment right provided for in primary legislation see the Employment Rights Act 1996 Part VII A sections 80F to 80I introduced by the Employment Act 2002, and expanded upon in the Flexible Working Regulations 2002. That was sufficient for her to have provided "details of the claim".

15. The test for "details of the claim" emerges as being whether it can be discerned from the claim as presented that the claimant is complaining of an alleged breach of an employment right which falls within the jurisdiction of the Employment Tribunal. It follows that if that test is met there is no scope for either the Secretary or a Chairman interpreting "details of the claim" as being "sufficient particulars of the claim". If it becomes necessary, as a case proceeds through the system, for further information or further particulars to be obtained e.g. to clarify the issues, that can be done, either on the application of a party or by a Chairman on his or her own initiative, under rule 10 (case management)."

I note, however, that the details of the claim given by Mrs Grimmer were far greater than those given by the Claimant in this case and there was an explicit (even if unparticularised) claim that she was making a claim in respect of flexible working.

1. In Ali v National Office of Statistics, the Claimant sought to argue that his ET1 had raised a claim for discrimination on the grounds of race. This was disputed by the Respondent. Waller LJ considered this matter at paragraphs 23, 26 and 39 of his judgment in the Court of Appeal:

"23. When I read the particulars identifying the factual allegations which the appellant wished to make to support his claim, I can find no assertion of indirect discrimination or, to put it in the language of s.1(1)(b) no assertion that a requirement or condition was being applied, which would apply equally to persons not of the same racial group as the appellant, but which was such that the proportion of persons of the same racial group as the appellant who could comply with it was considerably smaller than the proportion of persons not of that racial group who could comply with it, and which was to the detriment of the appellant because he could not comply with it.

24. I cannot therefore see that paragraphs 3 and 7 contain any allegation of indirect discrimination."

Continued at 26:

"26. If, therefore, I was following the statutory provisions, my inclination would be to say that direct discrimination is one type of unlawful act and indirect discrimination is a different type of unlawful act. That being so, and an allegation of indirect discrimination not having been particularised in the originating application, my view would be that the ET were clearly wrong in the conclusion they reached, and the EAT were correct if and insofar as they concluded that this was a new claim being brought out of time and to which s.68(6) would apply."

I also derived assistance from the judgment of Underhill J in Abbey National v Chagger [2009] IRLR 86, a case where an issue had arisen as to whether a discrimination claim based on colour included a claim based on race. Underhill J observed at paragraph 33 obiter:

"33. Thus claimants who formulate their claim on the basis of "colour discrimination" will inevitably in fact be complaining, whether or not they appreciate it, of discrimination on the ground of race and ethnic origin, and therefore of two of the factors which explicitly attract the operation of s. 54A. No doubt those who are properly advised will, to avoid any room for argument, make clear in their pleadings that, even if the discrimination of which they complain was expressed in terms of colour, they are alleging discrimination on the ground of race or ethnic origin as well. But in cases where that has not been done we would expect the position to be clarified with the assistance of the Tribunal if necessary at the case management."

1. Mr Park sought to draw an analogy between the required contents of an ET1 and those required for a grievance submitted under Schedule 2 to the 2002 Employment Act. It is perhaps helpful to set out the required standard procedure:

"Step 1: statement of grievance;

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

1. This initial grievance is followed by the step 2 meeting to which the employee must be invited by the employer to discuss the grievance. This meeting must not take place unless the employee has informed the employer what the basis for the grievance was when he delivered the grievance and the employer has had a reasonable opportunity to consider his response to that information. I bear in mind also that the initial grievance is likely to be informal and will be followed by further and more detailed information from the employee, which can be discussed at the meeting. This, of course, differs from the presentation of the ET1, to which I have referred, and again will refer to later in this judgment.

1. It is well established that requirements of the details to be included in a grievance under the provisions that I have cited are "minimal", or "minimalist"; see such cases as Shergold v Fieldway Medical Centre [2006] IRLR 76, Canary Wharf Management Limited v Edebi [2006] ICR 719 and subsequent cases to which I need not refer.

1. In  Suffolk Mental Health Partnership v Hurst [2009] IRLR 12, (EAT) [2009] IRLR 452 it is instructive refer to the judgment in the EAT of Elias J:

"1. I have reached the conclusion that the submissions of the claimants are correct and that only the minimum requirement is necessary when raising a statement of grievance. In my judgment, it is enough for the claimant to indicate that he or she is pursuing an equal pay claim. That is compatible with the definition of a "grievance". The employee has made it plain that she objects to action taken by the employer, namely the failure to pay the sum due to her, and by identifying the claim as an equal pay claim she is also revealing the reason why she is saying that. She is not, for example, contending that there has been a failure to pay as a result of some mistake or because overtime hours have not been counted, or because her rate is below the minimum wage, or anything of that nature. The employer knows that the allegation is that a comparable man doing equal work (whether that is work rated as equivalent, equal value, or like work) is receiving more than she is and he ought not to be. That much is inherent in the action being identified as an Equal Pay Act claim."

He continued at para 67:

"67 Furthermore, it is also a matter of some significance that the claimant has identified a grievance, even if only to identify the jurisdiction to which it relates, because it means that the employer can if he wishes initiate further discussion to find out more about it. No doubt that is what would typically happen.

68 furthermore, in my judgment the construction I have supported gains some, albeit limited, assistance from the Grimmer case. That held that a Tribunal claim may itself be stated only in the most general terms and nonetheless confer jurisdiction on the Tribunal. Further particulars can be provided if the claim is deficient but a bare claim is enough to be accepted and to ensure that the complaint is lodged in time. If that is correct, then it would be surprising if Parliament were intending to require the statement of grievance to state more, at least in circumstances where it is specifically provided that the basis of the claim can be given at a later stage."

Added at paragraph 70:

"70. If my construction of what constitutes a grievance is correct, it follows that the correlation principle will in practice be very easy to satisfy. If the grievance states that the complaint is an equal pay complaint, a claim form which reflects that fact will suffice whether the details of the claim are provided or not. Again, this does not make the exercise a pointless one. If the claim raises claims of a quite different jurisdiction, for example a dismissal claim or redundancy, there will obviously be no correlation."

In that case Elias J was considering a number of cases, in all of which grievances had referred to pursuit of "equal pay claims" that had given no or very few particulars and employers had claimed that insufficient details had been given to constitute a valid grievance. As can be seen from the passages in his judgment that I have quoted above, Elias J held that any minimum requirements were necessary and that he drew support from the judgment of HHJ Prophet in Grimmer and the required contents of ET1 – I also refer to the judgment of Pill LJ in the Court of Appeal [2009] EWCA Civ 309 (Suffolk):

"61. I have formed a clear view in an equal pay context but am reluctant to give carte blanche to prospective claimants in all potential cases merely to give, and only to give, a heading such as unfair dismissal, harassment, victimisation, sex or race discrimination or a combination of these. A statement of facts will often be appropriate, the cause or causes of action plainly emerging and incantation of the statute not essential. There will be causes of action and cases in which particulars can readily be given by a potential claimant. For example, there are likely to be cases in which reliance is to be placed on a single event such as selection of a man rather than a woman for a particular job on a particular occasion. There could be cases in which a potential claimant intends to rely on only one of several potential events. In either case, failure to identify the event relied on could lead to a substantial amount of unnecessary work for the employer and amount to an abuse of process.

62. What purports to be a grievance statement could so mislead or distract that it is an abuse of the procedure contemplated by Parliament. It would be open to the Tribunal to hold such a statement was not a statement complying with paragraph 6 or 9 of schedule 2. I would expect such cases to be rare. It is in the interest of potential claimants to initiate the procedure in a constructive way which is conducive to successful negotiation."

1. Although an analogy between the requirements of a grievance and those of a claim form may be of assistance, it seems to me that a claim form should not be less informative than a grievance but rather it should be more informative. The ET1 is a more formal document than a grievance. It initiates litigation. Again, the employer must plead to it and although he can seek particulars he is entitled to know the basis of the claim he has to meet. Also, unlike a grievance, the provisions of the ET rules which I have referred to above include a requirement that "the details of the claim" must be included. Where a claim form does not provide the required information the secretary of the ET is bound to refuse to accept it. I am of the opinion, therefore, that however minimalist the requirement of detail in an ET1 claim form the minimum requirements are that it should identify with sufficient clarity the nature of the claim, so that a reasonable employer can discern what cause of action is being alleged.

1. The provisions of the Sex Discrimination Act 1975. Section 6 of the Act sets out the basic statutory tort of discrimination against women:

"6(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her –

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them."

1. I should have thought it was clear that the failure to offer the opportunity of overtime to a female while offering it to a male comparator was certainly capable of amounting to discrimination on the grounds of sex, by virtue of section 6 but would not appear to be a claim for equal pay.

1. I also refer to section 6(6) and 8(5):

"6(6) Subsection (2) does not apply to benefits consisting of the payment of money when the provision of those benefits is regulated by the woman's contract of employment.

8(5) An act does not contravene section 6(2)[above]] if

(a) it contravenes a term modified or included by virtue of an equality clause, or

(b) it would contravene such a term but for the fact that the equality clause is prevented from operating by section 1(3) of the Equal Pay Act 1970..."

1. It follows that equal pay claims are excluded from the ambit of the Sex Discrimination Act, whereas a claim that a fellow employee is paid overtime and the Claimant was not would not appear to fall within the ambit of section 8(5).

1. When I first considered the papers in this case, as I told counsel, I considered the issue was a simple one; namely, did the ET1 contain details of the equal pay claim or not? Such a claim was not referred to at the case management discussion before EJ Potter on 26 April. By the time of the other case management discussions the claim was already statute barred. It is extremely difficult to see how, applying the Selkent principles, it would have been proper to allow by amendment a statute barred claim.

1. On any construction, the material relied upon by the Claimant as constituting a claim for equal pay is more minimal or minimalist than any of the authorities cited to me.

1. For example in Grimmer flexible working was specifically identified. In the Suffolk Mental Health Partnership NHS Trust case there were specific references to equal pay.

1. If I apply the test propounded by HHJ Prophet in Grimmer, namely can it be discerned from the claim as presented that the Claimant is complaining of an alleged breach of an employment right which falls within the jurisdiction of the Employment Tribunal, I am simply unable to discern any such claim, not even the kind of minimalist claims as made in the cases I have cited.

1. There is nothing disclosed in the claim, save for allegations of discrimination on the grounds of sex. I also bear in mind what Waller LJ had said in Ali; reference to one form of discrimination (on the grounds of sex) does not incorporate a different form of discrimination (equal pay). I find it impossible to spell out of the words and the ET1 anything other than a complaint of discrimination on the grounds of sex. That is how the claims were understood either by the Respondent at the time or by the Employment judges; I have already noted that the order for particulars was for "particulars of discrimination on the grounds of sex."

1. As I have already made clear, I do not consider that the provisions of the Sex Discrimination Act, which I have referred to earlier in this judgment have any bearing on this appeal. Where a complaint of equal pay is properly made, for example, in cases where a woman's pay and that of the male comparator are regulated by the contract of employment, such claims are excluded from the ambit of the Sex Discrimination Act by section 8(5). The mere mention of pay in ET1 is not sufficient to bring a claim within the exclusion of equal pay claims from the Sex Discrimination Act. There must be some specific allegation a failure to provide equal pay or a reference to facts from which it can be reasonably and objectively discerned but the complaint is, as the Claimant would now wish to say, for doing equal work with a male comparator for lesser pay. Despite the valiant attempts of Mr Park to persuade me that the ET1 did contain a claim in respect of equal pay, I am unable to discern such a claim. I would conclude by thanking both advocates for their great help both in their skeleton arguments and submissions.