No specifics

Suffolk Mental Health Partnership NHS Trust v Hurst and ors
Sandwell Metropolitan Borough Council and ors v Arnold and ors

The statutory dispute regulations require claimants to put their complaint in writing to their employer before lodging a tribunal claim. In Suffolk Mental Health Partnership NHS Trust v Hurst and ors; Sandwell Metropolitan Borough Council and ors v Arnold and ors, the Court of Appeal held that equal pay claimants do not have to identify a specific comparator in their grievance.

The claimants’ union, Unison, instructed Thompsons to act on their behalf.

Suffolk cases

In December 2006 Unison lodged both individual and collective grievances on behalf of members who worked in female-dominated jobs. These had been rated as equivalent under Agenda for Change with other, better paid, employees who worked in jobs mainly done by men.

In August 2007, the women lodged a tribunal complaint, arguing that they were entitled to equal pay with their comparators for the previous six years. The Trust said that as they had not identified specific comparators, their grievance was not valid. The tribunal disagreed, saying that the women had complied with the requirements of the statutory grievance procedure.

Sandwell cases

In these cases, the woman had just said in their grievance letters that they had “suffered a shortfall in terms of the remuneration that they have received for their work, compared to that of male comparators”. Their tribunal claims identified comparators by naming particular posts and by identifying salary bands for both claimants and comparators.

The tribunal, relying on the decision of the EAT in Highland Council v TGWU and ors (see weekly LELR 50) said that the claimants had not complied with the relevant statutory requirements and that the claims should be struck out.

EAT decision

The two cases were heard together at the employment appeal tribunal (EAT). It said that as the purpose of the legislation was “to encourage conciliation and settlement” claimants only had to meet the minimum requirements of the law when lodging a grievance.

It said that by lodging a grievance the employee was making clear that she objected to her employer not paying “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”. The employer therefore knows at that point that the woman is alleging “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”.

As the claimants had stated that they had a complaint about equal pay, that was enough to satisfy the statutory requirements. They did not, at this stage, have to identify a comparator.

Court of Appeal decision

And the Court of Appeal agreed. It said that although a large union like Unison could be expected to have “considerable knowledge and expertise in this field”, it still did not think that Parliament intended to make access to a tribunal “so high that a grievance notice is invalid unless it includes full particulars of the claim, even in a Union assisted case”.

Although the law had differentiated between individual and collective claims, the Court said that still did not infer “a Parliamentary intention to require detail”.

The grievance therefore only had to be written in the most general terms and the simple requirement that the claim was being made under the 1970 Equal Pay Act was “not a surrender to tokenism”. By identifying the legislation, “it excludes other types of claim often made to Employment Tribunals. It establishes the necessary statutory basis for the claims”.

The Court concluded that the language in the statutory dispute regulations did not suggest that an elaborate statement was required. In fact, all it required was that the grievance should be set out in writing.

On that basis the Court preferred the reasoning of the EAT in this case to that of the judge Lady Smith sitting in the Scottish EAT in Highland Council v TGWU and ors.