Section 32(2) of the Employment Act 2002 says that employees cannot lodge tribunal claims if they have not put their grievance in writing to their employer. Although that may not seem to have any relevance to equal pay claims, the Scottish Employment Appeal Tribunal (EAT) has just decided, in Highland Council v TGWU / Unison, that it does.
As required by law, the claimants in this case lodged a number of equal pay grievances with their employer, and duly listed a number of job comparators in their step one letter. They then submitted their tribunal application ET1 forms which listed those same comparators, as well as an additional number of jobs which they had not previously specified in the grievance letters. Their employer said they could not do that.
And unbelievably, the EAT agreed. It said that tribunals have to carry out a “qualitative assessment” to find out if the comparators in the ET1s were “materially different from any specified in the grievance document”. It remitted the issue to the same tribunal to carry out the necessary assessment.
In reaching its decision, the EAT dismissed the “anxieties expressed regarding the technicalities of the Rules” as not relevant to its decision. It did however emphasise the intention of Parliament “to encourage conciliation and the avoidance of disputes”, and concluded by commenting that the (only?) practical effect of its decision would be to increase the paperwork burden on all.
Needless to say, the decision is being appealed.