South Ayrshire Council v Aitchison & Ors (Equal Pay Act) [2011] UKEAT 0050_10_1103

EAT
South Ayrshire Council v Aitchison & Ors (Equal Pay Act)
[2011] UKEAT 0050_10_1103 · 2011-03-11
[1]This is an appeal from the judgment of an Employment Tribunal sitting at Glasgow (Employment Judge, F Eccles) registered on 17 June 2010 finding that the Claimants had complied with the requirements of section 32 of the Employment Act 2010 (statutory grievance procedures). The issue that arose related to a collective grievance, the subject matter of which was equal pay.[2]I will continue referring to parties as Claimants and Respondent.[3]The Claimants were represented by Mr J Morgan, solicitor, before the Tribunal and by Mr Napier QC before me. The Respondent was represented by Ms L Morrison, solicitor, before the Tribunal and by Ms A Jones, solicitor, before me. Background[4]The agreed facts were as follows. UNISON’s Branch Secretary for South Ayrshire, Renee Gillan sent a letter (4/1) to the respondent’s Chief Executive, Mr T Cairns dated 11 August 2006 purporting to raise a collective grievance for back pay under the Equal Pay Act 1970 . The letter (4/1) was addressed to the respondent’s Chief Executive, Mr T Cairns, in the following terms:- “Dear Mr Cairns Collective Grievance for Back Pay under the Equal Pay Act 1970 – revision of initial documentation. Not withstanding your letter refusing to accept that the initial grievances lodged on behalf of UNISON members re Back Pay under the Equal Pay Act 1970: this letter represents a grievance lodged by is as the recognized trade union on behalf of those members, your employees, who are entitled to back pay under the Equal Pay Act 1970. In particular we are submitting grievances on behalf of those people whose names are listed in the Schedule annexed to this letter. This list may require subsequent revision. It is my understanding that any employee who believes that they have a grievance has an entitlement in law to have a grievance heard. I would therefore be obliged if you could schedule hearings of those persons named in the attached. The grievance relates to back pay under the Equal Pay Act 1970 arising out of our members’ employment with you for the periods stated in the Schedule. Our members are doing work which has been rated equivalent under the Job Evaluation Scheme adopted by the Council in 1 st July 1999, or alternatively whose work is of equal value to other of your employees (“the comparators”). The comparators are paid more than our members. Our members work in groups who are predominately female and/or the comparators work in groups that are predominately male. As such they are entitled to equal pay with their comparators unless you can prove that there is a valid objective reason for paying them less than their comparators. In our view there is no valid objective reason. Our members are therefore entitled to back pay in respect of the difference in pay between them and their comparators, for up to 5 years. Please may we have in writing an acknowledgement that in principle you will bay the back pay owing to our members under the Equal Pay Act and any proposals you wish to put forward to settle this issue.” No such Schedule was annexed to the letter. Instead, UNISON supplied with the above letter a computer disc which contained a document listing a series of names (4/2 to 4/350).[5]The Respondent replied to UNISON by letter of 25 September 2006 , in the following terms:
“Dear Renee Collective Grievance for Back Pay under the Equal Pay Act 1970 I refer to your recent correspondence regarding the above and would advise that having taken legal advice the Council is not prepared to accept the grievance in its present form. The reasons for this are: You appear to have submitted your grievance based a list of employees which seem to constitute a list of all UNISON members in the Ayr Branch, male and female, of whom many are unlikely to have an Equal Pay issue. It is the Council’s understanding that any grievance must refer to these specific group(s) of employees to whom the grievance applies together with details of 3 comparators for each staff group and grounds of comparison in each case This has not been submitted to date. The grievance must identify the group of staff who claim to have a grievance and cite comparators and grounds. A grievance by an entire workforce is not acceptable. On these grounds it is our opinion that the grievance as it currently stands is therefore incompetent. Additionally with regard to your reference to “work rated as equivalent” letter under the Job Evaluation Scheme I would refer you to my letter of 30 th June 2006 which explained that no equal pay claim on these grounds can be considered until after the completion of the Job Evaluation exercise……… Should you require any further information please do not hesitate to contact me.”
[6]On 7 November 2006, UNISON lodged an ET1 with the Employment Tribunal on behalf of Mrs Alexander and 35 others (2/1 to 2/11). The Respondent lodged its ET3 with the Employment Tribunal on 7 December 2006 (3/1 to 3/7). Further particulars were lodged on behalf of the Respondent on 5 February 2007 (3/8). Relevant law[7]Section 32 of the Employment Act 2002 provides:
“32. Complaints about grievances (1) This section applies to the jurisdictions listed in Schedule 4. (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.”
[8]These provisions apply to complaints under the Equal Pay Act 1970 and paragraph 6 of Schedule 2 to the 2002 Act provides:
“The employee must set out the grievance in writing and send the statement or a copy of it to the employer.”
[9]Under the Employment Act 2002 (Dispute Resolution) Regulations 2004 , it is provided that claimants will be deemed to have complied with the requirements of the statutory grievance procedure in certain circumstances; paragraph 9 of the 2004 Regulations applies in the present case:
“(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.”
[10]It was not disputed that the author of the letter dated 11 August 2006 from Renee Gillan of Unison, to the Respondent, was an “appropriate representative”.[11]Under these legislative provision, whilst paragraph 6 requires each employee to raise a grievance with his/her employer in writing, paragraph 9 allows the grievance to be raised on behalf of a group of employees by, for instance, a union representative; where that happens, there is no need for each employee to intimate his or her own separate grievance. However, as was observed by Elias P (as he then was) in Alitalia Airport SpA v Akhrif & Ors [2008] ICR 813 , those claimants who are relying on the provision must be identified by the representative, in writing, as parties to the collective grievance process:
“36… The employer must know on whose behalf the collective grievance is being lodged. It is not enough that only one of the claimants has been identified leaving the employer in ignorance of who else might share the grievance… … 40… The representatives must identify in writing the employees on whose behalf he is raising the grievance, and that must mean all the employees including those raising a statutory grievance who subsequently become claimants. 41. It follows in my judgment that the regulation 9 requires the union representative to identify each party who is to be treated as having complied with the statutory grievance procedure …”
[12]Further, I agree with Mr Justice Elias that a failure to identify the relevant parties in writing in the original grievance letter need not be fatal since it would be open to the representative to do so subsequently albeit that the statutory time frame would still apply ( Alitalia - para. 49). Thus, in this case, it would have been open to the Claimants’ union representative to follow up the letter of 11 August 2006 with a further letter containing a list of names of the relevant employees. It is, though, no answer to a failure to comply with these statutory requirements that it has been said that it is not appropriate to adopt an approach to construction of them that involves “undue technicality and over-sophistication” ( Shergold v Fieldway Medical Centre [2006] ICR 304 per Burton P, at para. 27). The requirement to specify the names of the relevant employees is neither technical nor sophisticated. It is a simple and straightforward requirement and it is entirely understandable that Parliament evidently considered it fair that the employer should at least be put on notice as to which of his employees have a grievance; otherwise he could not reasonably be expected to make any realistic effort to respond appropriately to their complaints.[13]The question of the interpretation of the words “in writing” arises. The Claimants’ representative sent a computer disc to the Respondent, rather than a written document. The phrase “in writing” is not defined in the legislation. Schedule 1 of the Interpretation Act 1978 provides:
“‘Writing’ includes typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form, and expressions referring to writing are construed accordingly.”
[14]Under reference to that provision, Professor William McBryde has expressed the opinion that a telex would qualify as “writing” because the message is normally reproduced and intended to be reproduced in a form in which words are visible ( The Law of Contract in Scotland para. 23.52). It might, I suppose, equally be argued that since a computer disc is intended to be used so as to produce visible words on a computer screen, it too is covered by the definition.[15]There is no authority directly in point. The term “document” was considered in Rollo v Her Majesty’s Advocate (1997) JC 23 where, during a search under the authority which empowered them to recover items including any “document” covered by s. 23(3)(b) of the Misuse of Drugs Act 1971 , police recovered a “Memomaster” which was found to disclose a drugs supply “tick list” of names and telephone numbers. The “Memomaster” was a small hand held computer. On appeal, the High Court of Justiciary held that it was covered by the search warrant and the evidence which it constituted was, accordingly, admissible. At p. 26, delivering the opinion of the court, Lord Milligan explained:
“…the word ‘document’ in normal usage is most frequently used in relation to written, typed or printed paper documents. Where information is stored by other means on other surfaces we accept that the storing item concerned is more readily referred to by reference to the means of storage or surface for storage concerned rather than as a ‘document’. Hence reference to, for example, machines or tapes. However, terminological emphasis in description in such cases on the means or surface for recording information does not deprive such alternative stores of information from qualifying as ‘documents’ any more so than, for example, a tombstone, which is expressly included in the dictionary definition referred to. It seems to us that the essential essence of a document is that it is something containing recorded information of some sort. It does not matter if, to be meaningful, the information requires to be processed in some way such as translation, decoding or electronic retrieval. Furthermore, inevitably the potential for tampering with various forms of recording of information will vary in nature and extent according to the particular features of the information store concerned. Any suggestion of tampering becomes a matter of evidence for the jury to consider. Nor, in our opinion, is a store of recorded information deprived of qualifying as a ‘document’ because it is protected in some way against unwanted access. In this connection, we do not regard electronic mechanisms on the Memomaster designed to prevent unwanted access as being material to the point in issue. In this connection, we regard such electronic security mechanisms as being no different to the lock on a locked diary, which clearly does not deprive the latter of qualifying as a ‘document’.”
The Tribunal’s judgment[16]First, the Employment Judge found that the requirement to provide the names of the relevant employees ‘in writing’ could be satisfied by providing a computer disc. She found:
“…in the above circumstances, albeit no Schedule was attached to the letter of 11 August 2006 in the form of a hard copy, a Schedule was provided by means of the computer disc and the Schedule was a list of employees’ names ‘ in writing ’”
[17]She made no finding in fact as to whether or not the 2,500 or so people whose names appeared on the computer disc in fact had equal pay grievances as at 11 August 2006. On her approach, that did not, however, matter because the names of the 500 or so Claimants who had presented forms ET1 appeared amongst those in the list that was on the computer disc.[18]The Employment Judge also considered an issue of whether or not the author of the letter of 11 August had the requisite authority but that matter did not feature in the appeal before me. The appeal[19]Ms Jones had, essentially, two submissions. First, that the Employment Tribunal had erred in finding that the statutory requirements could be complied with by intimating a computer disc. Secondly, that the Employment Tribunal had erred in finding, on the facts, that the Claimants’ representative had specified in writing the names of the employees who had a grievance.[20]In support of her first submission, Ms Jones, anticipating a suggestion that to exclude the use of a computer disc was too technical, said that that was not at all the case. Fundamentally, the Respondent was entitled to know immediately to whom the grievance related. It was not enough to say that they could open the computer disc and print it out. What if the disc had been corrupted? What if the disc had not been in a form which the Respondent’s systems could read? It was an essential feature of the regulatory scheme that the grievance could be read and understood as soon as received. There was nothing in the deeming provisions to suggest that the clock would not run during any period that the Respondent was having difficulty in reading the disc. The purpose of encouraging conciliation and compromise would be liable to be defeated.[21]In support of her second submission, she said that the Claimants’ representative had provided a computer disc which, when opened, showed information that was, in the context of intimation of a grievance, incomprehensible. There were some 2,500 names listed, both male and female, despite the grievance letter having referred to it relating to members working “in groups who are predominantly female”. It did not state any periods of employment, as referred to in the letter. It contained some lists of jobs unattached to any names. It was, plainly, not the “Schedule” referred to in the letter. She, further, relied on the agreed fact that “instead of” supplying a Schedule such as referred to in the letter, the representative supplied a computer disc. It could not be said that it complied with the statutory requirements; it did not even name groups of affected employees as had been done in the case of Highland Council v TGWU and Ors (no. 2) [2008] ICR 1150 not that that alone was enough, for the reasons there explained .[22]Ms Jones added that there were a number of means by which the representative could have resolved matters so as to enable their Claimant members to pursue equal pay claims. She could have responded to the Respondent’s letter of 25 September 2006 by giving the requisite clarification. A new collective grievance could have been intimated. Individual grievances could have been intimated. New collective grievances could have been intimated. None of that was done.[23]For the Claimants, Mr Napier accepted that there had to be the naming of names. That said, the question was whether or not the Claimants had done what was necessary to give the Employment Tribunal jurisdiction and to do so, the validity of the writing had to be determined at the start of proceedings. He stressed that details were not required nor was undue formality; unions could be expected to behave sensibly and a technical approach was to be avoided: Reddy v The Bedfordshire and Luton Partnership NHS Trust UKEAT/0023/10, BAILII: [2010] UKEAT 0023_10_1805 ; Brett & Ors v Hampshire County Council UKEAT/0500/10, BAILII: [2010] UKEAT 0500_08_2501 .[24]He submitted that names were provided by means of the computer disc. The Respondent could have but did not lead evidence to show whether or not any of the names listed were the names of employees who did not have a grievance. It was not to be assumed from the fact that not all of them presented claims subsequently that they were not all, at the time the disc was sent, employees who had an equal pay grievance. It was, though, evident from the facts that those who presented claims had intimated grievances. The Respondent’s objection was, really, that more information had been provided than was necessary; that did not mean that there had been no compliance. He submitted that “writing” should be construed so as to include a computer disc under reference to Schedule 1 of the Interpretation Act. A flexible approach was required in modern times. He also sought to draw support from the case of Rollo v HMA . Discussion and decision[25]I have concluded that the Employment Tribunal erred, for the reasons advanced in submission by Ms Jones.[26]The issue that arose for determination was a fundamental one; did the Employment Tribunal have jurisdiction to entertain the Claimants’ claims? Unless the requirements of the statutory grievance procedure had been complied with, that question could not be answered in the affirmative. The grievances in respect of these claims had been presented as a collective grievance and the Claimants looked to the deeming provisions in paragraph 9 of the 2004 Regulations to discharge the onus of establishing compliance. That meant that the Employment Judge required to ask herself whether, on the facts, the Claimants’ representative had, when intimating the collective grievance “specified in writing …the names of at least two employees” on whose behalf she was raising the grievance.[27]The letter of 11 August 2006 advised the Respondent that an equal pay grievance was being raised “on behalf of those people whose names are listed in the Schedule annexed to this letter.” Three other characteristics of the “Schedule” are referred to. The first is that, in addition to the names of the employees, it states the periods of employment to which their grievance relates. Secondly, it can be inferred from the reference to their working in “predominantly female” groups and to their comparators working in groups that are “predominantly male”, that those named on the list are females – the comment would not have made sense if the context were that, unusually, the employees raising these equal pay grievances were or included males. Thirdly, the reference to the “Job Evaluation Scheme” (widely known to have been carried out by local authorities in Scotland in addressing a longstanding problem of gender related imbalance in pay rates as between men and women whereby lower rates were paid to the latter) supports the inference that the employees on whose behalf the grievance is being raised are all women.[28]Parties agreed that “no such Schedule” as was referred to in the letter was in fact supplied. This is not a case of the computer disc that was supplied in fact containing the Schedule. Perusal of the contents of the computer disc (which were included in the appeal bundle) shows that it contains many men’s names as well as the names of women. It does not include any specification of periods of employment. It also contains lists of various jobs. It is not headed “Schedule” nor is there any other indication that it contains the information that would have been included in the Schedule referred to in the letter, had the representative done what, in the letter she said was she going to do, and annex it. In short, assuming he could open and read the computer disc, an employer reading it together with the letter of 11 August 2006 could not reasonably be expected to conclude that the lists of names on the disc were those on behalf of whom the equal pay grievances referred to were being raised. It is not at all surprising that the Respondents’ reaction was to write and advise not only that they were not accepting the grievance in the form in which it was presented but to make clear that they considered that there was a problem with the list of names. What is surprising is that the Claimants’ representative did not respond by sending the Schedule she had originally referred to or at least a list of those employees who wished to raise an equal pay grievance.[29]The condition that had to be complied with here was not technical or sophisticated. It was simply a matter of naming the relevant names. I do not agree with Mr Napier’s submission to the effect that since the Respondent led no evidence to show that the names on the computer disc included persons who did not have a grievance, it was to be assumed that they all had an equal pay grievance. There is no basis for that assumption, particularly since the inclusion of men’s names on the computer list and the absence of reference to periods of employment gave rise to a real doubt as to whether it was the right list and, further, that it was for the Claimants to show that they had complied with the statutory requirements. There was no evidence one way or the other and the Employment Judge correctly avoided making the assumption for which Mr Napier contended. She then, however, fell into error by testing whether or not there had been compliance by asking whether or not, once the claims had been presented to the Employment Tribunal, it could be seen that the Claimants were amongst those listed on the computer disc. That cannot, however, be the correct approach. The time at which to test whether or not there has been compliance is at the point of intimation of the grievance. Could the employer, at that stage, tell which of his employees had an equal pay grievance? If he could not then there could be no reasonable expectation of the purpose of the statutory procedures – the resolution of grievances without litigation – being achieved.[30]In these circumstances, the appeal must succeed.[31]I do not, accordingly, require to deal with the issue of whether or not, had the computer disc contained the Schedule referred to in the letter, there would have been compliance with paragraph 9 of the 2004 Regulations but I would have been inclined to reject the Claimants’ submissions on that matter also. Whilst much effective communication is achieved in the 21 st century by the sending of a small portable object with a view to it being inserted into a computer by the recipient – most commonly nowadays, a USB flash drive – I am not persuaded that that contemporary fact points to a need to interpret “in writing” in that paragraph as including the sending of such an object. The purpose of the regulations requires to be borne in mind, namely to give a period during which parties should seek to resolve their differences rather than litigate. A pre-requisite to any such resolution is, plainly, that the employer knows which employees he is dealing with. The regulations applied to all employers whether large or small and whether sophisticated or unsophisticated. They applied to an employer whether or not he had a computer. Also, the time period during which the employer had the protection of the employee being barred from presenting his claim to an Employment Tribunal – because it was envisaged that parties would be trying to resolve it – was quite short. A computer disc or USB stick will not necessarily be able to be read by the computer into which the recipient of it places it for a variety of reasons whether on account of corruption of the disc/USB stick or incompatibility of software. There would, accordingly, have been obvious potential for the “clock to be ticking” against the employer whilst he was trying to find a means of reading the disc/USB stick.[32]In the circumstances, whilst there may well be provisions in other legislation which use the term “in writing” so as to justify it being interpreted as covering the sending of a USB stick or something similar (as foreseen by Professor McBryde), the purpose and context of these provisions is, in my view, such as would rule it out. Disposal[33]I will pronounce an order upholding the appeal and substituting for the judgment of the Employment Tribunal a judgment dismissing these claims on the ground that it does not have jurisdiction to entertain them.