Birmingham City Council v Akhtar & Ors [2012] EWCA Civ 585

Case No A2/2011/1696[2012] EWCA Civ 585
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE EMPLOYMENT APPEAL TRIBUNAL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/05/2012
Before
LORD JUSTICE PILLLORD CARNWATHLORD JUSTICE PATTEN
Between
Birmingham City CouncilAppellantParveen Akhtar and OthersRespondents
Paul Epstein QC and Louise Chudleigh (instructed by The Solicitor to the Council) for AppellantAndrew Short QC and Naomi Cunningham (instructed by Thompsons) for RespondentsHearing Hearing date : 20 March 2012
JudgmentLord Justice Pill :
[1]This is an appeal against a decision of the Employment Appeal Tribunal (“EAT”), Underhill J, President presiding, on 9 May 2011. The EAT upheld a judgment of an Employment Tribunal sitting at Birmingham, Employment Judge van Gelder presiding, dated 5 November 2009. The Employment Tribunal had held that “the claimants’ grievances all comply with the statutory grievance procedure”. Mr Akhtar is one of 132 claimants (“the respondents”) who had brought equal pay claims against Birmingham City Council (“the appellant”).

The background

[2]The issue is whether the respondents complied with the now repealed section 32 of the Employment Act 2002 (“the 2002 Act”) before submitting claims under the Equal Pay Act 1970 (“the 1970 Act”) to the Employment Tribunal. In the absence of compliance with section 32, the Employment Tribunal had no jurisdiction to consider their claims. Several ways in which attempts to comply with the section were used by different respondents and need to be considered: UNISON 1 and 16 (for present purposes the same), UNISON 3 and GMB 1 and 2a (for present purposes the same as each other). UNISON and GMB are of course substantial Trade Unions and the appellant is a local authority employing very many people.[3]Section 32 was enacted to encourage the resolution of claims by employees without recourse to the Employment Tribunal. It aimed to encourage the definition and discussion of issues and thereby to reduce the number of claims which need to go to a Tribunal. Many detailed arguments have been addressed to the court. Equal pay issues as between men and women have in recent years been the subject of disputes involving very large numbers of people and many public authorities, including the appellant. The scale of the problem has been recognised judicially (Suffolk Mental Health Partnership NHS Trust v Hurst & Ors [2009] ICR 1011, at paragraph 57.[4]The present litigation involves a number of such claimants. The respondents’ theme has been that the section and schedule under it should be read and applied in the context of a dispute in which both unions and employers were well aware of the issues involved. Claims should not be defeated by technicalities. The appellant’s theme has been that the statutory language must not be strained or contorted.

The statutory scheme

[5]Section 32 of the 2002 Act, which applied to claims brought under the 1970 Act, provides, in so far as is material:
“(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if - (a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and (b) the requirement has not been complied with.” (a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and (b) the requirement has not been complied with.”
[6]Schedule 2 provides two different grievance procedures. The standard procedure is set out in Part 2, Chapter 1. Three steps are involved, step 1, statement of grievance, step 2, meeting, and step 3, appeal. Step 1 is specified in paragraph 6:
“The employee must set out the grievance in writing and send the statement or a copy of it to the employer.”
[7]Part 2, Chapter 2 is headed ‘Modified procedure’ and provides two steps, step 1, ‘statement of grievance’ and, step 2, ‘response’:
“9.

(b) send the statement or a copy of it to the employer”

. The additional requirement, under paragraph 9, to set out ‘the basis’ for the grievance will be noted. (a) set out in writing - (i) the grievance, and (ii) the basis for it, and (b) send the statement or a copy of it to the employer”. Step 2, ‘response’, provides:
“The employer must set out his response in writing and send the statement or a copy of it to the employee.”
[8]The Employment Act 2002 (Dispute Resolution) Regulations 2004 (2004 No.752), made under the 2002 Act, provides, at Regulation 6(3), circumstances in which the modified grievance procedure applies in relation to a grievance. One of the conditions, at paragraph 6(3)(c), is that the parties have agreed in writing in relation to the grievance that the modified procedure should apply.[9]A new dimension was added to the situation by regulation 9 of the 2004 Regulations which provides, insofar as is material:
“(1) Where either of the grievance procedures is the applicable statutory procedure, the parties shall be treated as having complied with the requirements of the procedure if a person who is an appropriate representative of the employee having the grievance has - (a) written to the employer setting out the grievance; and (b) specified in writing to the employer (whether in setting out the grievance or otherwise) the names of at least two employees, of whom one is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance.” (b) specified in writing to the employer (whether in setting out the grievance or otherwise) the names of at least two employees, of whom one is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance.”
[10]The regulation provides for a collective grievance, though that term is not used. We accept that the reason for its enactment was that, when an “appropriate representative”, usually a Trade Union, is involved, a responsible approach to discussion before a claim is brought can be assumed.[11]The respondents attempted to raise before this court, for the first time, the further submission that the appellant was estopped by convention from taking a point on non-compliance with section 32. We did not permit the point to be argued, on the ground that it gives rise to factual issues which, if they were to be raised, should have been raised before the fact-finding tribunal, the Employment Tribunal.

The procedures followed

[12]The relevant parts of the UNISON 1 and 16 letters sent to the appellant are:
“I write on behalf of the following UNISON member in accordance with S.32 of the Employment Act 2002 to raise a formal grievance under the Employment Act (Dispute Resolution) Regulations 2004. [Particulars of respondent] This member has suffered a shortfall in terms of the remuneration that she has received from her work, compared to that of male comparators. Under the Equal Pay Act 1970, she is entitled to recover that shortfall, backdated to at least 6 years with interest. Please note that this letter is written in accordance with regulation 9 (modified procedure) of the aforementioned regulations. I am therefore relieved of the need to take any further steps under the statutory grievance procedure. I look forward to hearing from you within 28 days.”
The letter was on the headed notepaper of the UNISON Birmingham branch and was signed by Mr Mills, as ‘single status co-ordinator’. It appears that some UNISON 1 grievances were sent by the Union to the appellant in batches and others individually. [Particulars of respondent] I look forward to hearing from you within 28 days.”

[Particulars of respondent]

[13]The UNISON 3 letter was a pro-forma headed ‘UNISON’ and ‘Potential Equal Pay Claim’. The particulars of the potential claimant were given and it was added:
“and believe that I have a claim for Equal Pay against you as my employer at the time. I am therefore writing to you to register this potential claim and am now raising a formal grievance under the Employment Act 2002 (Dispute Resolution) Regulations 2004. Please confirm that it would be appropriate to use the modified statutory grievance procedure. I believe that historically, I have not had the benefit of terms which male members of staff employed by you are entitled to. As a consequence, I have suffered a shortfall in terms of the remuneration that I have received for my work, compared to that of various male comparators. Under the Equal Pay Act 1970, I am entitled to recover that shortfall which may include basic pay, bonus pay and enhancements to basic pay, backdated to six years with interest. I am of the belief that at this stage it is not necessary to name comparators. The entitlements are related to the jobs that the male employees perform and it is only jobs performed principally by men that receive these entitlements. I look forward to hearing from you within 28 days.”
The letter was signed by the applicant herself but this and other similar forms were collected by UNISON and submitted by UNSION by email. I look forward to hearing from you within 28 days.”[14]GMB 1 and 2a took the form of letters written on the headed notepaper of GMB for Birmingham and West Midlands, Corporate Human Resources. The relevant parts of the letter, having named the potential claimant, read:
“Please note that we have been instructed to represent the above named in relation to an Equal Pay claim. Please note this is a Step One Grievance letter in line with both your Internal Procedure, and in accordance with the Employment Act 2002 (Dispute Resolution Regulations 2004). The basis of the Claimant’s complaint is as set out below, and we would be grateful if you could confirm that it would be appropriate to use the modified statutory grievance procedure.”
Details were given in ten numbered paragraphs but it was claimed that there was no need to name comparators and the appellant was invited to provide details of the same. The letters were signed by a GMB organiser.[15]The appellant initially responded on the basis that step 1 of the modified procedure was satisfied by these letters. It did not contend otherwise in the original ET3 response forms. However, following the decision of the EAT in City of Bradford Metropolitan District Council v Pratt [2007] IRLR 192, the appellant applied to strike out the claims because the letters did not, or did not sufficiently, set out “the basis” for the complaints and therefore did not comply with the requirements of the modified procedure as stated in paragraph 9 of Schedule 2 to the 2002 Act. In Pratt, the EAT, His Honour Judge Richardson presiding, had held that for the purposes of step 1 of the modified grievance procedure, an employee must set out in his statement the essential reasons why he holds his grievance in sufficient detail to enable the employer to respond. The amount of detail is likely to depend, he held, on the nature of the grievance. The respondents argued that they had complied with the modified procedure. Alternatively, the grievances fell within regulation 9 of the 2004 Regulations and there was a deemed compliance with the statutory procedure.

Decisions below

[16]The Employment Tribunal found that the letters complied with the modified grievance procedure. It also found that none of them were collective grievances under regulation 9 of the 2004 Regulations. The EAT found that the grievances did not comply with the modified grievance procedure because they had failed sufficiently to state the basis of the grievance but that they did fall within regulation 9 of the 2004 Regulations.[17]On the question whether the grievances complied with the modified grievance procedure, the EAT held that giving the employer sufficient information for him to be able to “respond” plainly means “respond substantially”. The fact that, here, it was (correctly) anticipated that the employer’s “response” would be to “kick the ball into touch”, does not get round the employees’ failure to supply anything that could reasonably be described as stating the basis of their complaints, as required by paragraph 9. Even the GMB letter failed for lack of identifying comparators.[18]However, having given detailed consideration to each of the forms in which grievances had been submitted, the EAT, in each case, held that, by reason of regulation 9 of the 2004 Regulations, there was a deemed compliance with the statutory procedure.[19]The EAT held that when there was a covering email, which itself says nothing beyond identifying the attachments, the result is a grievance being raised by the Union on behalf of the statement makers. The EAT had in mind two general points. First, the provisions of the 2002 Act should be construed in a way which avoids creating procedural traps which have no relationship to the underlying purpose of the legislation. Secondly, the individuals intended UNISON and GMB to have the carriage of their dispute. Reference in the letters to the modified grievance procedure was not fatal but is superseded by the fact that the Union has “taken over” the grievance. On that basis, each of the disputed categories is covered by regulation 9(1) of the 2004 Regulations.[20]The appellant submitted that the grievances complied with neither procedure. The respondents seek to uphold the conclusion of the EAT on regulation 9. They also claim, by a respondent’s notice, that the modified grievance procedure was satisfied in the circumstances. These included the nature of the appellant’s initial responses to the grievances and no further information being required to enable the matter raised by the grievances to be dealt with by the procedures which had been adopted by the appellant for dealing with them.[21]In Cannop & Ors v Highland Council [2008] CSIH 38, the Lord President, giving the judgment of the Court of Session, Inner House stated, at paragraph 29, in relation to section 32:
“an unduly technical or over-sophisticated approach is inappropriate. Moreover, the grievance document need not necessarily be read in isolation. There may have been earlier communications with the employer which provide a context in which the grievance document falls to be interpreted (Canary Wharf, paragraph 36). Thus, as seems to have been the case for some of the union-backed claimants in the present proceedings, prior communications between the unions on behalf of their members and the respondents, even if they do not give rise to deemed compliance by virtue of regulation 9 or 10 of the 2004 Regulations, may constitute a relevant context in which the grievance documents are to be understood.”
On avoiding technicalities, see also Hurst, at paragraph 57.[22]In Canary Wharf Management Ltd v Edebi [2006] ICR 719, the EAT, Elias J, President, though in a different context, stated, at paragraph 24:
“It would be quite wrong to require the grievance to be made in any unduly legalistic or technical manner.”
He also referred to the risk on the employer of having to pay additional compensation if the claim ultimately succeeds and the employer has not complied with the statutory procedure.

Submissions

[23]For the appellant, Mr Epstein QC submitted that the requirements of regulation 9 of the 2004 Regulations were not met. In relation to UNISON 1, it was submitted that it is self-evidently not the purpose of the document to invoke the collective grievance procedure. Followed as it is by the words in brackets, “modified procedure,” the intention must have been to follow the modified procedure. The reference to regulation 9 (an apparent reference to the 2004 Regulations) must have been a slip and the intention was to refer to paragraph 9 of schedule 2. It was plain that UNISON were seeking an agreement that the modified procedure would apply. To “look forward” to hearing from the appellant could only be a reference to the modified procedure where the next step is the employer’s response because, in the regulation 9 procedure, there is no next statutory step.[24]It was submitted that regulation 9 is not complied with unless the document relied on makes it clear on its face that it is sent as a collective grievance document. This was an individual grievance, purportedly under the modified grievance procedure, and it was important to distinguish between the Union acting as agent for the employee in forwarding a grievance and the Union itself raising a collective grievance on behalf of employees under regulation 9. There was no covering letter or email specifying that the series of individual grievances submitted were collective. The mere forwarding of separate unconnected grievances cannot amount to a collective grievance within the meaning of regulation 9, it was submitted. Mr Epstein accepted that a series of individual grievances could become collective by reason of an appropriate covering letter, provided by its terms the employer was led reasonably to believe that regulation 9 was to apply.[25]It was submitted that the EAT’s reliance on the words “or otherwise” in regulation 9(1)(b) was misplaced. It qualified the word “writing” in the sub-paragraph and did not eliminate the need to make clear that the Union is raising the grievance “on behalf of” employees.[26]A distinction must be drawn, it was submitted, between the Union transmitting the letters of its members and the Union acting for a person “on behalf of whom he is raising the grievance.” It was further submitted that the reference to the modified grievance procedure in the letter excludes the application of regulation 9, which is stated to be a procedure distinct from the modified procedure and excludes its operation. The existence of a sanction on employers who do not comply with the statutory procedure gives importance to the need to read its provisions without contortion.[27]I am inclined to the view that the reference to regulation 9 rather than paragraph 9 was a fortuitous slip which cannot be relied on to establish that regulation 9 applies. I also agree with the appellant that the presence of the word “otherwise” in regulation 9 does not establish the respondents’ case. I read each letter as having been written with the intention that the modified grievance procedure should apply.[28]The appellant submitted that to hold that it is the Union representative who has ‘written to the employer setting out the grievance’ under regulation 9(1)(a) is to strain unduly the wording of the regulation. In some cases all the Union has done is to forward letters written by members. On that basis, the GMB claims, where the same procedure was followed, are not distinguishable.[29]For the respondents, Mr Short QC seeks to uphold the conclusion of the EAT on this issue. Regulation 9 is stated to apply if either grievance procedure operates and a request to agree that the modified procedure should apply is not inconsistent with the operation of regulation 9. There is no requirement in regulation 9 for the names of those represented to be specified in a single document.

Conclusions

[30]I would uphold the conclusion of the EAT on the regulation 9 issue. I attach importance to two interrelated factors. First, I am in no doubt that the Unions were in fact acting for each of the respondents and would be understood by the appellant to have been acting on their behalf throughout. The grievance procedure was undertaken in a context in which the Unions were plainly acting “on behalf of” the respondents when submitting documents to the appellant.[31]Secondly, the documents were sent in the context of a long-standing dispute about equal pay involving issues which had been well ventilated and which involved a large number of employees for whom the Unions were acting. It is clear that a working relationship had developed between the appellant and the two Unions and that the issues were well known on both sides. In that context, to treat the documents, notwithstanding the modified grievance procedure references, as failing to comply with regulation 9 of the 2004 Regulations would, in my judgment, be to take a more technical view of the procedure than the law requires or permits. As the Lord President put in Cannop, the prior communications between the unions on behalf of their members and the appellant constitute a relevant context in which the grievance documents are to be understood.[32]In that context, a letter signed by the Union representative or, failing that, submitted to the appellant by the Union representative, was sufficient writing setting out the grievance by the representative within the meaning of regulation 9(1)(a). Further, the names of at least two employees have been specified by each Union in writing, if the documents are read together, and the grievance is raised on their behalf within the meaning of regulation 9(1)(b).[33]Provided the requirements of regulation 9 are satisfied, as in my view they are, there need not be an intention to have acted under that regulation. Documents written with a view to following the modified grievance procedure may have the effect of attracting the operation of regulation 9. That possibility was not excluded by the letters written.[34]On the paragraph 9, modified procedure, issue, a procedure has been developed, following Pratt, as to the information to be supplied if the requirement is to be satisfied. Cogent reasons would be required to change that approach now. In the absence of the requirement for sufficient detail to enable the employer to respond, contemplated in Pratt, the statutory intention in paragraph 9 would be deprived of much of its force.[35]I am reluctant to disturb the findings of the EAT on the issue, especially as I find no need to decide it. The modified grievance procedure was not followed by UNISON because the “basis for the grievance was not specified”. While the context by way of long-term dealings between the appellant and the Union might serve to relax the extent of the requirement when stating the basis for the claim if the modified procedure is to be satisfied, I would on balance uphold the decision of the EAT on that issue. I am more doubtful about the GMB cases because some detail was given, but would not overrule the EAT.[36]I would uphold the findings of the EAT on the regulation 9 issue and it would follow that the appeal is dismissed.

Lord Carnwath :

[37]I agree.

Lord Justice Patten :

[38]I also agree.