Putting pay on paper

Cannop and ors v Highland Council

The law says that employees cannot lodge tribunal claims if they have not put their grievance in writing to their employer. In Cannop and ors v Highland Council, the Court of Session has said that the complaint put forward in the grievance document has to be essentially the same as the one in the tribunal form.

Basic facts

A large number of employees (most of them women) submitted equal pay claims to their local authority employers. In their step one grievance letters, they put forward a (non-exhaustive) list of equal pay comparators.

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 as the comparators were not the same in both documents, the women would have to resubmit new grievances and ET1 forms. The claimants argued that there was no need to name comparators in the grievance letter at all – they just had to say it was about unequal pay. In any event, they said they were all, in essence, the same type of comparator.

Tribunal and EAT decisions

The tribunal took a common sense approach, saying that although the job types in the ET1s were not the same as the original grievance letters, the comparators named in the grievance just had to be “related” to those listed in the subsequent claim.

But the EAT disagreed. It criticised the tribunal, saying that its decision gave a “green light” to claimants to add any comparator at the ET1 stage. That would put employers in the situation of not “being able to understand the nature of the grievance prior to the start of proceedings. For that, an indication of the comparator being relied on is required to be given”.

The EAT 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” and remitted the issue to the same tribunal.

Court of Session decision

The Inner House of the Court of Session (the Scottish equivalent of the Court of Appeal) decided that the EAT was correct to say that tribunals were required to carry out a “qualitative assessment” of the grievance documents and the ET1s. In fact, the claimants did not substantively dispute this.

However, the Inner House did decide that the EAT had gone too far by requiring the tribunals to determine whether the comparators in both documents were the same in order to have a valid grievance, giving the tribunal the jurisdiction to hear the equal pay claims.

It said that the essence of the issue was whether the claimants had satisfied the requirements of section 32 of the 2002 Employment Act which says that employees cannot lodge tribunal claims if they have not already submitted a grievance in writing to their employer (as required by paragraph six of schedule 2 of the Act). The Court concluded that “to satisfy this provision there had to be some correlation between the grievance relied on and the claim submitted”.

It urged courts not to become over-technical in their approach to these issues, saying that the grievance document and the ET1 form “are designed to perform different functions and that their language will often therefore be different. The correlation to be looked for is whether underlying the claim presented to the tribunal is essentially the same grievance as was earlier communicated.”

It added that tribunals can take other communications between the parties into account to help provide a context in which to interpret the grievance document.