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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Suffolk Mental Health Partnership NHS Trust v Hurst & Ors [2009] EWCA Civ 309 (07 April 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/309.html Cite as: [2009] IRLR 452, [2009] EWCA Civ 309, [2009] ICR 1011 |
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A2/2008/2877 |
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE ELIAS
UKEAT/0332/08/RN
BAILII: [2008] UKEAT 0332_08_0611
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE WALL
and
LORD JUSTICE ETHERTON
____________________
| Suffolk Mental Health Partnership NHS Trust |
First Appellants |
|
| - and - |
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| Hurst & Ors |
First Respondents |
|
| Sandwell Metropolitan Borough Council & Ors |
Second Appellants |
|
| - and - |
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| Arnold & Ors |
Second Respondents |
____________________
Mr Andrew Stafford QC and Mr Jeremy Lewis (instructed by Messrs Wragge & Co LLP ) for the Second Appellants
Mr Paul Epstein QC and Ms Betsan Criddle (instructed by Thompsons) for the First and Second Respondents
Hearing dates : 26 and 27 February 2009
____________________
Crown Copyright ©
Lord Justice Pill :
"In relation
(1) To each individual grievance and
(2) Each collective grievance, whether there was compliance with the requirements of section 32 of the 2002 Act.
In particular:
(a) Was each such grievance a valid grievance for the purposes of section 32?
(b) Did each such grievance contain essentially the same complaint as the subsequent claim?" [the correlation principle]
"(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.
(3) 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 has been complied with, and
(b) less than 28 days have passed since the day on which the requirement was complied with.
(6) An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2) to (4), but only if –
(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings, or
(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 (c 17) (employment tribunal procedure regulations).
(7) The Secretary of State may for the purposes of this section by regulations –
(a) make provision about the application of the procedures set out in Part 2 of Schedule 2;
(b) make provision about what constitutes compliance with paragraph 6 or 9 of that Schedule;
(c) make provision about circumstances in which a person is to be treated as having complied with paragraph 6 or 9 of that Schedule;
(d) make provision for paragraph 6 or 9 of that Schedule to have effect in such circumstances as may be specified by the regulations with such modifications as may be so specified."
Section 2 of the Equal Pay Act 1970 ("the 1970 Act") is a jurisdiction to which section 32 applies (Schedule 4 to 2002 Act).
"CHAPTER 1
STANDARD PROCEDURE
Step 1: statement of grievance
6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer.
Step 2: meeting
7.-(1) The employer must invite the employee to attend a meeting to discuss the grievance.
(2) The meeting must not take place unless –
(a) the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6, and
(b) the employer has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision as to his response to the grievance and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3: appeal
8.-(1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the appeal meeting, the employer must inform the employee of his final decision."
"(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."
"A claimant whose grievance is lodged through a regulation 9 procedure is deemed to have complied with paragraph 6 and therefore can satisfy section 32(3)(a); but the obligation to satisfy 32(3)(b) remains."
(Elias J, President, in Alitalia Airport SpA v Akhrif & Ors [2008] ICR 813, at paragraph 34). Thus, subject to the passage of 28 days, a collective complaint can be presented to the Employment Tribunal without the meetings contemplated in paragraphs 7 and 8 of schedule 2. That is common ground.
"(a) the party has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in a significant threat to himself, his property, any other person or the property of any other person;
(b) the party has been subjected to harassment and has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in his being subjected to further harassment; or
(c) it is not practicable for the party to commence the procedure or comply with the subsequent requirement within a reasonable period."
"Any claim in respect of the contravention of a term modified or included by virtue of an equality clause, including a claim for arrears of remuneration or damages in respect of the contravention, may be presented by way of a complaint to an [Employment Tribunal]."
"At a stage 1 equal value hearing a Tribunal shall, unless it considers it inappropriate to do so . . . order that –
(a) Before the end of the period of 14 days after the date of the stage 1 equal value hearing the claimant shall:
(i) Disclose in writing to the respondent the name of any comparator, or, if the claimant is not able to name the comparator he shall instead disclose such information as enables the comparator to be identified by the respondent;
. . ."
The Suffolk Cases
"This letter represents a grievance lodged by us as the recognised trade union on behalf of those members, your employees, who are entitled to back pay under the Equal Pay Act 1970. . .
The grievance relates to back pay under the Equal Pay Act 1970 arising out of our members' employment with you prior to the introduction of Agenda for Change.
Our members are doing work which has been rated as equivalent under the Agenda for Change job evaluation, or alternatively whose work is of equal value, to other of your employees and also other employees employed by other NHS employers ("the comparators"). The comparators are paid more than our members.
Our members work in groups who are predominantly female and/or the comparators work in groups that are predominantly 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 6 years.
Please may we have your proposals in writing in settlement of this issue. At this stage we are simply seeking acknowledgement in principle that you will pay back pay owing to them under the Equal Pay Act."
". . . and the remaining names have varying roles within the organisation which makes comparison difficult. Also you have not cited any individual comparators.
The Trust's policy in equal pay matters following Agenda for Change is for an individual staff member, or a group of staff working in the same role to write in with a formal grievance citing their comparator. A grievance panel will consider if this is a justifiable claim and if so will deal with it in a fair and consistent manner. Please advise your members to write to me formally so that we can resolve their concerns as quickly as possible."
"Unfortunately, I am unable to let you have our proposals as you have not cited any individual comparators."
"The comparators are men employed in jobs which are or were mainly done by men, which are now rated as equal or are rated lower than the current grade of the claimants but prior to Agenda for Change were paid more than the claimant (sic). The claimants are female who work in predominantly female groups.
. . .
The comparators will be named after disclosure of information or documents by the respondents."
The Employment Tribunal found that there had been compliance with paragraph 6.
"As we have no male comparator we believe that no discrimination has occurred."
It was also stated that the three complainants had three very different roles and responsibilities and a disproportionate effort would be required to give the details requested.
"Implemented between December 2004 and December 2006, the objective of the Agenda for Change programme was to reform and standardise the pay and conditions of around 1.1 million staff in the NHS in England, representing a pay bill in excess of £28 billion a year in 2007/08."
One of the objects is stated to have been to "pay fairly and equitably for work done". It is stated that "there was widespread agreement within the NHS that a new pay system was needed". A key principle behind Agenda for Change was stated to be "to introduce a system that could pay staff on a consistent basis by reference to the work they do and the skills and knowledge they apply".
The Sandwell Cases
"I write on behalf of the members detailed in the attached schedule who are employed as [various posts within the Council are referred to] by Sandwell MBC in accordance with Section 32 Employment Act 2002 to raise a formal grievance under the Employment Act 2002 (Dispute Resolution) Regulations 2004.
These members have suffered a shortfall in terms of the remuneration that they have received for their work, compared to that of male comparators. Under the Equal Pay Act 1970 these members are 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 of the above mentioned regulations and therefore relieved of the need to take any further steps under the Statutory Grievance Procedure."
"The Claimant contends that it is not necessary to name comparators as the essence of the entitlements is the job that the employee does and the fact that it is only jobs performed principally by men that receive these entitlements. However, the Claimant will in particular rely on all the Respondent's male workers who the Claimant contends carry out work of equal value to her. The Claimant invites the respondent to provide details of the same."
Findings of EAT
"Rarely can legislation have been so counter-productive. Provisions designed to reduce tribunal disputes have spawned satellite litigation in which arcane and complex points of law have been argued, frequently . . . remote from reality . . ."
Submissions
"My grievance is (please give full details including dates, times, names of people involved etc)"
and
"I would like it resolved as follows."
(I interpose that the particulars suggested are hardly apt for an equal pay grievance).
Ms Holliday said that the Trust employed about 1,900 people who were covered by Agenda for Change, of whom about 75% were female. The reference to male staff therefore covered almost 500 men.
"The employer is entitled to know the essence of what it is that he has to respond to. He is entitled to approach the fixing of the stage two meeting, including, for instance, the identification of those who should be present at the meeting, on the basis of such knowledge, all with a view to trying to resolve the issue. He is not, in my view, being provided with that material if all he is being told is that his employee has an equal pay complaint. To regard that as enough would be to reduce the stage one grievance communication to a relatively meaningless level of generality or tokenism. That would not accord with a statutory scheme that is intended to try and bring about an efficient and effective practical result."
Judgment of Elias J
"62. I have reached the conclusion that the submissions of the claimants are correct and that only the minimum requirement is necessary when raising a statement of grievance. In my judgment, it is enough for the claimant to indicate that he or she is pursuing an equal pay claim. That is compatible with the definition of a "grievance". The employee has made it plain that she objects to action taken by the employer, namely the failure to pay the sum due to her, and by identifying the claim as an equal pay claim she is also revealing the reason why she is saying that. She is not, for example, contending that there has been a failure to pay as a result of some mistake or because overtime hours have not been counted, or because her rate is below the minimum wage, or anything of that nature. The employer knows that the allegation is that a comparable man doing equal work (whether that is work rated as equivalent, equal value, or like work) is receiving more than she is and he ought not to be. That much is inherent in the action being identified as an Equal Pay Act claim.
. . .
64. This construction is supported, in my view, by considerations of policy. The effect of construing the concept of "the grievance" too widely is that claimants - who will often in this jurisprudence be litigants in person - are denied the opportunity to bring their claims altogether if they have not raised a relevant grievance in time. That is a draconian step to take for what might be a purely technical failure to comply with the regulations. In my judgment it is particularly important to recognise that the logic of the argument advanced by the employers is that even if the employee in fact provides orally all relevant details of the claim so that the employer has every opportunity to deal fully with the grievance (and indeed perhaps he even does so, albeit not to the employee's satisfaction), the failure to comply with paragraph 6 by formally identifying the comparators (by name or job) will still prevent the Tribunal from hearing the claims. That would in my view be a deeply unattractive position for the law to adopt and would be wholly inconsistent with the objective of the statute.
65. Moreover, I do not accept the submission that the contrary construction renders the requirement to state a grievance a dead letter. If the employee only provides the bare statement and does not, when providing the basis of the claim, assist further by providing details of the claim sufficient to enable the employer to understand and seek to resolve the grievance, that can still have very real adverse practical consequences for the employee. As I have pointed out, he or she can be subject to a reduction of compensation of up to 50 per cent. No doubt if the Tribunal thought that the employee was deliberately or cynically refusing to engage in the grievance process, the maximum amount, or something very close to it, would be awarded.
66. I recognise that this is not a sanction that arises in circumstances where a collective grievance is lodged under regulation 9. However, I do not think that the fact that Parliament has left it to the collective parties to resolve the grievance according to their own procedures should dictate the proper construction of paragraph 6.
. . .
70. If my construction of what constitutes a grievance is correct, it follows that the correlation principle will in practice be very easy to satisfy. If the grievance states that the complaint is an equal pay complaint, a claim form which reflects that fact will suffice whether the details of the claim are provided or not. Again, this does not make the exercise a pointless one. If the claim raises claims of a quite different jurisdiction, for example a dismissal claim or redundancy, there will obviously be no correlation."
The judge continued:
"78. The points raised by the employers in these two cases seem to me to highlight the problem of drawing the line between the grievance and the basis of the grievance. This is avoided if all that is required is the bare statement of the jurisdiction in issue. The employers in their submissions in large part identified as lacking from the written grievance the very kind of information that I would have expected to be provided later. It was either information I would not have expected to be available to the employee at the time when the grievance was lodged, or information about the claim which I would have anticipated could properly be given at the second stage when the basis of the grievance has to be provided.
. . .
80. I accept that the Sandwell case raises more difficult issues precisely because it puts in stark terms whether a bare statement that the claim is an equal pay claim suffices. I accept the claimants' submissions that this would have been seen against the context of widespread claims in local government, where female groups are comparing themselves with male groups. However, that gives little additional contextual assistance in identifying the nature of the comparators. However, for reasons I have already given, and even though this complaint is about as limited as it could be to constitute a statement of grievance under the statute, I consider that it states enough to satisfy the requirements of paragraph 6."
The judge also held, at paragraph 81:
"Once the grievance can be identified as constituting a valid statement within paragraph 6, then in my judgment, the only proper inference is that the claim correlated to it."
Authorities
"[Whether] in every case, the statement of grievance must specify the comparator or comparators relied on, and that these must not be materially different from those relied on in the ET1 [complaint] to the Tribunal."
"The definition of grievance does not upon the face of it contain any requirement that the complaint should go any further than being a complaint about what the employer has or has not done. There is no particular formality required by the statutory wording."
"26. It is quite plain that the purpose of this legislation was to encourage conciliation, agreement, compromise and settlement rather than the precipitate issue of proceedings.
27. To that extent, therefore, the need for parties to understand each other's position before proceedings are launched (and the opportunity for resolution short of litigation) is to be welcomed, but what must be guarded against, once such legislation has been enacted, is that it can create its own hostage to fortune and, in fact, introduce an entirely and, we are satisfied, unintended result of creating undue technicality and over-sophistication, which can result in problems for both sides.
. . .
30. First, the statutory requirements, we are satisfied, are minimal in terms of what is required. It is simply that the grievance must be set out in writing. . . . the original setting out of the grievance itself does not require to be so particularised."
"The law in this area is directed at employees who in many cases – perhaps most – will have no knowledge at all of the relevant law. The aim is to promote the use of appropriate procedures. It would be quite wrong to require the grievance to be made in any unduly legalistic or technical manner."
"The cause of action is asserted pursuant to statute. Within and by virtue of the statute there is more than one cause of action. There are three different legal bases for an equal pay claim."
Mummery LJ added, at paragraph 257:
". . . Claimants are entitled to put forward all their equal pay claims cumulatively. The different heads of claim may have different outcomes as a result of different ingredients leading to the selection of different comparators and to different evidence being adduced."
"The grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance, if the relevant statutory provision is to be complied with."
In Highland Council, in the Inner House, the Lord President stated, at paragraph 29:
"The correlation to be looked for is whether underlying the claim presented to the tribunal is essentially the same grievance as was earlier communicated."
Conclusions
(a) The 2002 Act has the admirable purpose of discouraging the precipitate issue of proceedings and encouraging negotiation, conciliation and settlement (Shergold). That purpose may, however, be frustrated if the procedure leads to satellite litigation on technical issues about whether a statement amounts to a grievance under paragraph 6 and whether a claim subsequently made to a Tribunal is the same claim as was included in the statement of grievance.(b) The continued failure in parts of the public sector, notwithstanding the 1970 Act, to pay women equally with men is well documented and publicised and, on the evidence, I find it unsurprising that the claimants in these cases had at least suspicions about their unfavourable treatment in this respect. I am prepared to take judicial notice of the public concern about failure fully to implement provisions of the 1970 Act. Elias J referred, at paragraph 80 of his judgment in the present cases, to the context of equal pay, that is of 'widespread claims in local government'. The claimants were entitled to explore the position. The issue is best dealt with by negotiation between representatives of employees and the employers but progress in this field has been sufficiently slow to make attempts to seek redress through the tribunal system on occasions legitimate.
(c) In the health sector, the need to explore matters fully has been highlighted by the analysis and re-grading involved in Agenda for Change.
(d) The procedures involved in assessment under the 1970 Act are complex as evidenced by the several potential methods of comparison under section 1(2) of the 1970 Act (paragraph 12 of this judgment). They may involve substantial enquiry and analysis. An employee is most unlikely to have the necessary information, or the facilities with which to obtain it, unless there is full co-operation from the employer.
(e) While a large union, such as UNISON, may be expected to have considerable knowledge and expertise in this field, and can be expected to put it to the use of its members, I do not consider that Parliament intended to make the hurdle to be leapt, before access to an Employment Tribunal is possible, to be so high that a grievance notice is invalid unless it includes full particulars of the claim, even in a Union assisted case.
(f) In a collective claim, the requirement (paragraphs 7 and 8 of schedule 2) for meetings is not present. I regard that as no more than a recognition that, in such claims, Unions can be expected to behave responsibly and not lightly take the further step of proceeding to the Employment Tribunal. They can be expected to enter into dialogue, even if pre-grievance statement negotiation either has not occurred or has been unsuccessful. This difference between individual and collective claims does not demonstrate a Parliamentary intention to require detail.
(g) The correlation principle in my view operates in favour of a grievance statement being required only in the most general terms. It is unthinkable that Parliament was creating a trap for employees by requiring detail in a grievance statement which, following legitimate and desirable negotiation and discussion, might well require amendment, by way of a further grievance statement or statements, and further discussion and delay, before complaint to the tribunal is possible. I reject the submission that the correlation principle is the mainspring of the procedure to the extent that the requirement to comply with it demonstrates the need for a detailed statement of grievance.
(h) The need for successive grievance statements would prejudice a complainant because arrears of pay are paid for a period of 6 years fixed by reference to the date of the subsequent complaint to the Tribunal. Limitation problems will also arise.
(i) Merely to state that the claim is made under the 1970 Act is not a surrender to tokenism. It excludes other types of claim often made to Employment Tribunals. It establishes the necessary statutory basis for the claims.
(j) In this context, the statutory language does not suggest that an elaborate statement is required. Section 32 requires compliance with paragraph 6 or 9 of schedule 2. Paragraph 6 of schedule 2 requires only that the grievance is set out in writing. Not even the basis for the claim need be stated, though I very much doubt whether the present issue should turn on the distinction between what Mr Stafford called the 'what' and the 'why'. That would lead to further sterile argument.
(k) Notwithstanding the above, further particulars will normally be expected during stage 2 but failure to provide them does not have the same draconian effect as failure to comply with step 1.
(l) The case management powers available to Tribunals by reason of the 2004 Procedural Regulations, including provision for a "stage 1 equal value hearing", do not support the view that a technical approach should be adopted to the manner in which the procedure had been initiated.
(m) The power to increase or to decrease damages, under section 31 of the Act, is consistent with Parliament's intention to encourage negotiation and discourage the precipitate issue of proceedings but throws little light on what must be done to initiate the procedure under section 32.
"The employment judge considered, as in my view he was plainly entitled to do, that the essential complaint was victimisation and the particular matters identified in the claim form simply provided the details of the alleged victimisation. In the normal way that would be information that an employee would be would be expected to give at stage two of the grievance procedure. It would not be a matter that would be required at stage one."
Lord Justice Wall :
7.- (1) The employer must invite the employee to attend a meeting to discuss the grievance
(2) The meeting must not take place unless –
(a) the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6; and
(b) the employer has had a reasonable opportunity to consider his response to that information ………
(4) After the meeting, the employer must inform the employee of his decision as to his response to the grievance and notify him or the right to appeal against the decision if he is not satisfied with it.
(emphasis supplied)
(a) the employee has ceased to be employed by the employer;
(b) the employer –
(i) was unaware of the grievance before the employment ceased, or
(ii) was so aware but the standard grievance procedure was not commenced or was not completed before the last day of the employee's employment ; and
(c) the parties have agreed in writing…..that the modified procedure should apply.
These members have suffered a shortfall in term of remuneration that they have received for their work compared to that of comparators. Under the (1970 Act) these members are entitled to recover that shortfall, backdated (with interest) to at least six years.
I would refer to your three items of correspondence dated 21 September 2008, submitting a formal grievance on behalf of the three groups of employees outlined.
Please contact my office to arrange a meeting to discuss the above issues.
My three letters to you ….. are written in accordance with regulation 9 of (the 1970 Act). I am therefore relieved of the need to take any further steps under the statutory grievance procedure.
Lord Justice Etherton :
