MRS D HOLC-GALE v MAKERS UK LTD [2005] UKEAT 0625_05_2112

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0625_05_2112Case No Appeal No. UKEAT/0625/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS D HOLC-GALEAPPELLANTMAKERS UK LTDRESPONDENT
Before
His Honour Judge Peter Clark Ms K Bilgan Mr J MallenderDate 21 December 2005
[1]APPEARANCES For the Appellant MR LIAM PIKE Solicitor PJH Law Orion House 14 Barn Hill Stamford Lincolnshire PE9 2AE For the Respondent MR CHRISTOPHER OVER Solicitor Messrs Over Taylor Biggs Solicitors 4 Cranmere Court Lustleigh Close Matford Business Park Exeter EX2 8PW SUMMARY Regulation 14 2004 Regulations; excluding discrimination Questionnaires from definition of statutory grievance. When failure to comply with SGP may be raised. Whether SGP requirement offends European Law. HIS HONOUR JUDGE PETER CLARK This is an appeal by Mrs Holc Gale, the Claimant before the Bedford Employment Tribunal against that Employment Tribunal's Judgment promulgated with reasons on 24 August 2005 following a pre-hearing review (PHR) that the Employment Tribunal had no jurisdiction to consider her complaint because she had not complied with the statutory grievance procedure (SGP). The Respondent here and below is her former employer, Makers UK Ltd. Background[2]The Claimant was employed by the Respondent from 5 September 2001 until 30 November 2004. On 2 January 2005 she presented a claim to the Employment Tribunal. That was a claim under the Equal Pay Act 1970 (Eq PA). She compared herself with a fellow-employee, Geoff Brown.[3]Section 3 of the claim form is headed 'Action before making a claim'. In answer to Q 3.5 – Have you put your claim in writing to the Respondent? She replied 'Yes' and gave the date on which she had put her complaint in writing as 22/10/04.[4]The Claimant served a written questionnaire on the Respondent in connection with her then potential Eq P claim, dated 21 October 2004. She completed the standard form issued by the DTI. Section 1 states that she believed, for the following reasons, that she may not have received equal pay in accordance with the Eq PA 1970. There then followed this short summary of her reasons for that belief:
"The comparators have the same job title as myself. We perform the same purchasing duties, with equal purchasing responsibilitys [sic]. However I have reason to believe that they have substantially larger incomes than myself. The volume of work I perform within my role is of a higher capacity than the comparators listed."
At Section 2(a) she wrote:
"I am claiming equal pay with the following comparator(s): Geoff Brown – Coventry Office. Purchasing Officer John Woolcock – Sawtry Office. Purchasing Officer. Hire Buyer Peter Maundrell – Accrete. Purchasing Officer."
There then followed a series of questions in connection with her potential Eq P claim.[5]In Section 2 of their Response form, again headed 'Action before a claim', the Respondent answered 'Yes' to Q 2.5 'Has the substance of this claim been raised by the Claimant in writing under a grievance procedure? In answer to Q 2.6, requesting details of the stage reached, the Respondent replied:
"Claimant served equal pay questionnaire on 21.10.04 and Respondent replied on 12.11.04 and invited the Claimant to meet if she was not satisfied but the Claimant did not take up this offer."
[6]On 13 April 2005 a Case Management Discussion (CMD) took place. At that hearing the Respondent's solicitors raised a point under Regulation 14 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (The 2004 Regulations) as to whether the Claimant could rely on the questionnaire dated 21 October 2004 as a Step 1 grievance under the Statutory Grievance Procedure (SGP). The point had, it was said at the subsequent PHR, been missed by the solicitor who completed the Response. At the PHR the Employment Tribunal upheld the Respondent's submission that she could not. The Statutory Framework[7]The following provisions are material in this case. Section 32 of the Employment Act 2002 (EA 2002) applies to the jurisdiction listed in Schedule 4 to the Act. They include Eq P claims. By Section 32(2) an employee shall not present an Eq P claim if it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies and the requirement has not been complied with. Part 2 of Schedule 2 sets out the SGP. Step 1 is a statement of grievance. By paragraph 6 of Schedule 2:
"The employee must set out the grievance in writing and send the statement or a copy of it to the employer."
[8]By Section 32(6) EA 2002 an Employment Tribunal shall be prevented from considering a complaint presented in breach of Sub-section (2), but only if(a) [not applicable](b) the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under Section 7 of the Employment Tribunals Act 1996 (ET Rules of Procedure Regulations).[9]The Employment Tribunals (Constitution etc) Regulations 2004, Schedule 1, set out the current ET Rules of Procedure. Rule 4 deals with Responses; Rule 17 provides for the conduct of Case Management Discussions (CMDs). By Rule 17(2) it is provided that the matters listed in Rule 10(2) are examples of matters which may be dealt with at CMDs. Rule 10(2)(q) provides for the giving of leave to amend a claim or response. Rule 18 provides for the conduct of PHRs. By Rule 18(5) Judgment may then be given striking out, dismissing or otherwise determining the proceedings.[10]EA 2002 provides for the Secretary of State to make Regulations. Those Regulation are the 2004 Regulations. Material to the present case are the following: By Regulation 2(1) 'grievance' means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him. Regulation 14 is headed 'Questions to obtain information not to constitute statement of grievance'. By Regulation 14(1) Where a person aggrieved questions a respondent under any of the provisions set out in paragraph (2), those questions shall not constitute a statement of grievance under paragraphs 6 and 9 of Schedule 2 (EA 2002). By Regulation 14(2) the provisions referred to in Regulation 14(1) include Section 7B Eq PA 1970.[11]Section 7B Eq PA deals with the Questionnaire procedure common to all discrimination legislation. By Sub-section (2) the Secretary of State shall by order prescribe forms by which the complainant may question the Respondent on any matter which may be relevant and the Respondent reply. Sub-section (3) makes it clear that the complainant is not required to use the prescribed form in questioning the Respondent. The current Order, setting out the prescribed forms is SI 2003/722. The Employment Tribunal Judgment[12]The principal issue before the Employment Tribunal at the PHR was whether the Claimant had raised a grievance as required by Section 32(2) EA 2002, read with Regulation 14 of the 2004 Regulations. The Employment Tribunal held that she had not; the statements made in Sections 1 and 2(a) of the Questionnaire dated 21 October 2004 formed the basis for the questions which followed and, by virtue of Regulation 14 could not constitute a statement of grievance. (Reasons paragraph 18). At the time when the Claimant sent the statutory Questionnaire she was unaware of the need to raise the grievance. The Questionnaire was not sent as a grievance; it was sent in order to ascertain whether the Claimant had a claim under Eq PA and if so, how to formulate that claim (Reasons paragraph 15).[13]Secondly, the Employment Tribunal rejected a submission made on behalf of the Claimant that the Regulation 14 point had to be raised in the Response. It was raised at the CMD and that was permissible (Reasons paragraphs 24-25). Thirdly, the Employment Tribunal declined to refer the matter to the European Court of Justice on the Claimant's application. The Appeal[14]First, Mr Pike submits that the Employment Tribunal misconstrued the meaning of the word 'questions' in Regulation 14 of the 2004 Regulations. He repeats the argument, which failed below, that a distinction has to be drawn between the statements made by the Claimant at Sections 1 and 2(a) in the standard Questionnaire form and the questions which followed. The latter are caught by Regulation 14; the former are not. As to those statements, they comply with the meaning of grievance in Regulation 2(1), they are in writing, sent to the employer and raise a complaint about action taken by the employer. Accordingly the Claimant presented a grievance, thus complying with the statutory requirement under Section 32 EA 2002.[15]We accept that the statements in the Questionnaire fall within the Regulation 2(1) definition of grievance; the question is whether they are excluded from that characterization by the provisions of Regulation 14.[16]Whilst the contention raised by Mr Pike is plainly arguable we are persuaded by Mr Over that the policy behind Regulation 14 is to exclude the statutory anti-discrimination Questionnaire procedure altogether from the statutory definition of grievance. The prescribed Questionnaire form, although not mandatory, is headed 'The Complainant's Questions to the Respondents'. The summary at Section 1 and identification of comparators at Section 2(a) is a necessary foundation for the specific questions which follow. Those initial statements are, in that sense, part of the questions which follow. The word 'Questionnaire' although habitually used to describe the information gathering procedures under the discrimination statutes, does not in fact appear in those statutes. Thus Section 7B Eq PA speaks of questions, plainly envisaging that the standard form procedure in its totality is to be treated as questions by the Complainant. It is in that context that we read Regulation 14 of the 2004 Regulations. It is plainly directed to the whole of the Questionnaire procedure. In these circumstances we reject the first point taken in this appeal.[17]Secondly, Mr Pike draws attention to the words of Section 32(6)(b) EA 2002. He submits that the ET Rules of Procedure provide for a point about the Claimant's alleged failure to follow the SGP to be taken by the Respondent in the Response Form. Here, the point now taken was conceded in that Form.[18]We cannot accept that submission. The question as to whether the Claimant complied with the requirements of Section 32 goes to the ET's jurisdiction to entertain the claim. Mr Over candidly accepts that he overlooked Regulation 14 when completing the Response. His agent then saw the point and raised it at the CMD. Subject to any prejudice to the Claimant it was then open to the Respondent to apply for leave to amend the Response. No point is taken that no formal application to amend was made. However, the point having been raised it was then open to the Claimant to restart proceedings after putting in a written grievance. We do not believe that any question of estoppel would then have arisen. In any event that was the proper course for the Claimant, given our ruling on the meaning and effect of Regulation 14, to take. In these circumstances we can see no error of law in the Employment Tribunal's approach expressed at paragraphs 20-24 of their Reasons.[19]Finally, Mr Pike invokes the European jurisprudence. He submits that the requirement to raise a grievance is inconsistent with the Equal Pay Directive. We cannot see why. As Mr Over contends the Directive does not prevent Member States from imposing procedural requirements as to access to the judicial process under which Eq P claims are determined. For example, the limitation provisions. The requirement does not prevent access; nor does it affect the question as to whether an effective remedy is provided. Conclusion[20]For these reasons this appeal fails and is dismissed.