Sefton Metropolitan Borough Council & Anor v Hincks & Ors (Jurisdictional Points : 2002 Act and pre-action requirements) [2011] UKEAT 0092_10_1407

EAT
Sefton Metropolitan Borough Council & Anor v Hincks & Ors (Jurisdictional Points : 2002 Act and pre-action requirements)
[2011] UKEAT 0092_10_1407 · 2011-07-14
[1]This is an appeal against two related interlocutory decisions taken in the context of an equal pay multiple proceeding in Liverpool. The claims are of the familiar character where claimants employed by a local authority in predominantly female jobs claim the benefit of bonuses accorded to employees in predominantly male jobs. The multiple in this case comprises some 300 claimants, all of whom presented their claims before a cut-off date of 25 May 2009. Not all the claimants are represented by the same solicitors. This appeal is concerned with a group whose claims have been handled by the GMB union, instructing EAD solicitors, (“the GMB Claimants”). The claims are brought not only against the local authority by whom all the claimants were originally employed (“the Council”) but also against a company to whom some of them have since been transferred under TUPE: I will refer to both as “the Respondents” although they are in fact the appellants before me.[2]The problem giving rise to the appeal can be straightforwardly stated. Prior to commencing proceedings, each of the GMB Claimants submitted a grievance under the standard grievance procedure provided for in Schedule 2 to the Employment Act 2002 . In their grievance they identified a single comparator – or, rather, a single comparator job (as to this practice, see Prest v Mouchel Business Services Ltd (UKEAT/0604/10/DA), at n. 4) . I was shown by way of example the case of a Mrs Blundell, who in her grievance sought equal pay by reference to an “A Team Driver”. In their subsequent ET1s, however, they named four comparator jobs – in Mrs Blundell’s case, not only the A Team Driver but also “Horticultural”, “Rear Entry Driver” and “Road Sweeper”. In the meantime claimants represented by other firms had identified a number of other comparator jobs, and in due course a consolidated schedule of all the comparator jobs was compiled. The GMB Claimants decided that they should be claiming by reference to those jobs also and sought permission to amend accordingly. The Respondents applied to strike out the references in the ET1 to the jobs not referred to in the original grievance, on the basis that the claims in relation to those jobs were distinct claims in respect of which no grievance had been lodged and which accordingly the Tribunal had no jurisdiction to entertain by reason of section 32 (2) of the 2002 Act; and they resisted the application for permission to amend for the same reason.[3]Following a PHR on 1 October 2010, Employment Judge Robinson, by a Judgment and Reasons sent to the parties on 20 January 2011, decided both points in favour of the GMB Claimants – that is, he declined to strike out the comparisons which had not been mentioned in the grievances and he gave permission to amend in order to enable the GMB Claimants (and indeed others) to advance comparisons with all the jobs on the consolidated schedule. The Respondents have appealed. They were represented before me by Ms Louise Chudleigh. The Claimants were represented by Ms Catherine Rayner. Both counsel also appeared before the Judge.[4]Without disrespect to the Judge, since the principal issues before me are of pure law I will not set out or seek comprehensively to summarise his reasoning, though I will refer to it on a secondary issue: see para. 13 below.[5]The necessary starting-point is section 32 (2) of the 2002 Act, which provides as follows:
“(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.”
Paragraphs 6 and 9 of Schedule 2, as there referred to, provide for “step 1” of, respectively, the standard and modified grievance procedures. It is common ground that claims for equal pay concern a matter in relation to which the requirements of those procedures apply (see regulation 6 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 ); and also that in the present case we are concerned with the standard and not the modified procedure, i.e. with paragraph 6 rather than paragraph 9 of Schedule 2. Paragraph 6 states simply:
“The employee must set out the grievance in writing and send the statement or a copy of it to the employer.”
It is of course necessary, if a claimant is not to fall foul of section 32 (2) that the complaint which is the subject of the proceedings and the complaint about which he or she has lodged the grievance should be substantially the same: see Shergold v Fieldway Medical Centre [2006] ICR 304 , per Burton P at para. 35, and a number of subsequent authorities. This has come to be referred to as “the correlation principle”.[6]It is the Respondents’ case that the GMB Claimants have complied with the requirement of paragraph 6 only in relation to a claim by reference to the specific comparator job named in their grievance statements. The claims by reference to the further jobs identified in the ET1s and the amendment applications constitute distinct claims which require the lodging of their own specific grievances. The Respondents refer to paragraph 11 of my judgment in Brett v Hampshire County Council (UKEAT/0500/08/JOJ), where I said:
“ Analytically, each claim by reference to a different comparator is a different claim (or a different cause of action, as it is sometimes put). This was held by Elias P in this Tribunal in Redcar and Cleveland Borough Council v Bainbridge (no. 2) [2007] IRLR 494 : see at paragraph 125 (page 505), effectively adopting the submissions of counsel at paragraph 116 (page 504). That reasoning seems to have been upheld in the Court of Appeal: see [2009] ICR 133 at paragraph 261 (page 205). In the light of those decisions, the point was noted as having been common ground – but with the evident endorsement of this Tribunal, chaired by Slade J – in Potter v North Cumbria Acute Hospitals NHS Trust (no. 2) [2009] IRLR 290, at paragraphs 37-40 (pages 905-906). In my judgment it follows that, even if a complaint to the Tribunal or a grievance document brings together more than one comparison, the correlation issue must be considered in respect of each comparison separately. ”
I adhered to that analysis recently in Prest v Mouchel (above).[7]The GMB Claimants contend that that argument is inconsistent with the decision of the Court of Appeal in Suffolk Mental Health NHS Trust v Hurst [2009] ICR 1011 . In that case the Court held, affirming the decision of Elias P in this Tribunal ( [2009] ICR 281 ), that an employee sufficiently satisfied the requirements of paragraph 6 by lodging a statement that she had a claim of equal pay, even if she identified no comparator: see in particular para. 57 of the judgment of Pill LJ (pp. 1026-8). The Claimants say that it can make no difference that they have gone further than they needed by identifying a comparator. Their having done so does not have effect to limit the complaint: for the purpose of section 32 (2) all that matters is that both the grievance and the subsequent complaint to the Tribunal related to a claim for equal pay. That approach is not, they submit, inconsistent with the passage quoted above from my decision in Brett . The effect of Hurst is not that all claims made by reference to the Equal Pay Act 1970 constitute a single cause of action, but rather that step 1 of the statutory procedure does not require an employee to identify all the facts necessary to what may be one or more causes of action. The position is fundamentally different in the case of the modified procedure - which is what I was concerned with in the relevant part of the judgment in Brett – because under that procedure, in contrast to the standard procedure, the employee is required not only to “set out the grievance” but also to set out “the basis for it” (see most recently the judgment of this Tribunal in Beddoes v Birmingham City Council (UKEAT/0037/10/MW), at paras. 50-59, where I have sought to summarise the effect of the earlier authorities).[8]I prefer the Claimants’ submission. I agree that, although the present issue was not directly decided by the Court of Appeal in Hurst , the underlying principle appearing from that case should apply equally. I see no reason why the fact that the GMB Claimants chose to go further (as it now transpires) than they were obliged to and named a comparator means that their claim should be regarded for the purposes of section 32 (2) as limited to a claim by reference to that comparator. For the reasons given by Pill LJ, and also in the concurring judgment of Wall LJ, it is important to construe these unsatisfactory provisions, so far as possible, in such a way as to prevent either claimants or respondents being caught in purely technical traps.[9]Ms Chudleigh had two counter-arguments which I need to address.[10]First, she referred to para. 73 of the judgment of Elias P when Hurst was before this Tribunal, where he said this (at p. 300):
“ I do recognise that the construction I have adopted has certain unsatisfactory and anomalous consequences. Perhaps potentially the most significant is that if this construction is correct, there is an argument that an employee who does identify with some precision the nature of the claim in his or her grievance statement but who subsequently, in the tribunal claim form, adds comparators who were not originally identified in the statement of grievance, may be unable to pursue the claim against those comparators not already identified in the grievance. By contrast, he or she would be able to do so if the grievance had been left suitably general and vague. ”
However, in the following paragraph, Elias P suggested a possible answer to that difficulty. He said, while acknowledging that he had not heard the point argued:
“I am inclined to think that this can be avoided without undue artificiality by treating a detailed statement of grievance as constituting in substance a statement of the basic grievance that there is an equal pay claim and together with the detail, or some of it, which strictly is only required to be provided as part of the basis of the claim.”
In other words, any additional detail, including the naming of comparators, is to be regarded as in the nature of “voluntary further particulars” which do not form part of the statement of the grievance itself at step 1. That is entirely consistent with my own approach, and I respectfully believe it is correct.[11]Secondly, Ms Chudleigh referred to another part of my judgment in Brett , where I was dealing with claims in respect of which a “collective grievance” under regulation 9 of the 2004 Regulations had been lodged: it is common ground that the material terms of regulation 9 are identical to those of paragraph 6 of Schedule 2 to the 2002 Act. In that grievance, the jobs done by a number of claimants (as they subsequently became) were misdescribed. The employers took the point that that invalidated the grievance. The claimants sought to rely on Hurst . I held that the grievance was indeed non-compliant. I said, at para. 25:
“ I have … come to the conclusion that – whether or not it is necessary for the purpose of a valid grievance that a claimant in an equal pay claim should identify her job – when she does in fact do so and gets it wrong she cannot be said properly to be setting out her grievance for the purpose of the Regulations (or indeed of paragraph 6 of Schedule 2 to the 2002 Act, which uses identical language). Looking fairly at the purpose of these procedures (however imperfectly that purpose may have been achieved), the intention – as I have already noted – was that employers should be able to investigate an employee’s grievance, and hopefully resolve it, without the need for proceedings. If the employer is told in terms that the complainant is doing job X, whereas in fact she is doing job Y, he is likely to investigate the comparability of the comparator’s job and job X, and not job Y; and the whole grievance process will go off in the wrong direction. ”
Ms Chudleigh submitted that essentially the same reasoning should apply in the present case: the employer had been led to believe that the claim related specifically to the comparator job which had been identified, and it would be contrary to the purpose of the statutory scheme that a claim should be permitted to be brought by reference to a different job which the employer had had no occasion to investigate. The argument is beguiling, but there is a difference between the two cases. In the situation which I was considering in Brett what the employer had been misled about was the identity of the claimant’s rather than the comparator’s job. He was not, therefore, in the position of an employer served with a “ Hurst -compliant” grievance, who would know what job was being complained about even though he would need to make further enquiries in order to establish the “basis” of the claim, including in particular the identity of the comparator or comparator job. That seems to me to be a real difference.[12]I therefore reject the argument that the GMB Claimants had failed to comply with the requirements of section 32 (2) in relation either to the comparisons pleaded in the ET1s or to the further comparisons sought to be introduced by amendment. Having reached that conclusion, I need not consider an alternative submission advanced by Ms Rayner, in reliance on Highland Council v Transport and General Workers Union [2008] IRLR 272 , to the effect that section 32 (2) did not prevent claims which had not been the subject of a grievance being added by way of amendment.[13]There remains the question whether, even if there was no jurisdictional objection to amendment, it should not have been permitted as a matter of discretion, having regard to the ordinary principles summarised in Selkent Bus Company Ltd v Moore [1996] ICR 836 . The Judge said, at para. 86 of the Reasons, “on the balance of fairness and prejudice I must allow the amendments”. He acknowledged that there would be some prejudice to the Respondents. But he pointed out that the prejudice to the GMB Claimants would be serious in that it would leave them with a single comparator, and if they failed in that comparison their claims would be “stopped in their tracks”. He clearly had in mind in striking that balance the fact that all the “new” comparators had already been relied on by other claimants: that is, I think, what he meant by saying, at para. 86, “I see the listing of comparators more as a case management issue than anything more significant”. I entirely agree with his assessment. As we observed in Beddoes (above), it is particularly important in this kind of mass litigation to observe what is in truth a general principle, namely that amendments should not be denied purely punitively and where no real prejudice would be done by their being granted: see para. 13. It would be unsatisfactory, and indeed potentially unjust, that the comparators on whom claimants whose cases were materially similar could rely would vary according to who they were represented by. Ms Chudleigh submitted that the Judge had made an error of law by directing himself that the amendments involved no new cause of action. I agree that that was wrong: see, most recently, Prest v Mouchel (above). But I do not agree that that error makes a material difference in the circumstances of this case. It is not as such a bar to amendment that it introduces a new cause of action (even if the statutory time limits are past): see Transport and General Workers Union v Safeway Stores Ltd (UKEAT/0092/07). The amendments in the present case did not introduce any issues, factual or legal, to the litigation that were not in substance present already.[14]I accordingly dismiss the appeal.