Equal pay update

9 April 2009

The saga of what grievances employees need to have raised before taking claims under the late but not lamented grievance procedures (which were superseded on Monday) continues because existing cases will largely be under those rules and continue to be governed by them.  It is a crucial issue therefore as many claims do not have precise complaints raised.  The Court of Appeal has this week given Judgment in this area and it is not to the advantage of Respondents.
 
Suffolk Mental Health Partnership NHS Trust v Hurst & Ors: Sandwell Metropolitan Borough Council and Ors v Arnold & Ors (2009)
 
Background
The employees had lodged grievances with their employers containing either a statement that the claim was an equal pay claim under the Equal Pay Act 1970 (“1970 Act”), or merely adding that they were predominantly female and that the comparators were predominantly males sharing the same employer and paid more.

At the Employment Tribunal (“ET”) the employers submitted that, under s.32 Employment Act 2002, the ET had no jurisdiction to hear the equal pay claims because the grievances brought by the employees had failed to satisfy the requirements of the statutory grievance procedure set out in Schedule 2 paragraph 6 of that Act in that they were too vague and had not identified the comparators individually. The ET accepted that contention and the employees appealed.

The Employment Appeal Tribunal (“EAT”) allowed the appeals, concluding that, in the context of equal pay, the information to be provided in a grievance was minimal and that it was enough for the purposes of Schedule 2 paragraph 6 for employees merely to indicate that an equal pay claim was being pursued. The employers appealed against this.

The Court of Appeal (“CA”)
The CA dismissed the appeal and held that the purpose of the 2002 Act was to encourage negotiation and settlement. The CA concluded that: the procedures involved in assessment under the 1970 Act were complex and might involve substantial enquiry and analysis; an employee was unlikely to have the necessary information, or the facilities with which to obtain it, unless there was full co-operation from an employer; and that Parliament had not intended that a grievance notice would be invalid unless it included full particulars of the claim.

The CA concluded that s. 32 required compliance with Schedule 2, but Schedule 2 paragraph 6 required only that the grievance was set out in writing, therefore not even the basis for the claim needed to be stated. Accordingly, in equal pay claims, it was sufficient by way of a statement of grievance to inform the employer that the claim was brought under the 1970 Act. Further detail was not required.

Comment
This decision reflects an understandable desire to make the Tribunal system accessible for employees.  However, it will mean the continuance of a great many claims where the employees have done little more than raise a bare allegation.  Employers may wish to pursue the required details within the grievance processes if that remains possible.

The rules which led to this course of litigation have now been removed, but there does remain a continuing obligation under the new Code, for grievances to be addressed when raised, with the risk of an uplift if that does not happen.