Statutory dispute resolution: the relationship between the grievance and the ET1
In a Scottish case, the employees brought equal pay claims in the employment tribunal. To bring their claims they first had to raise grievances under the statutory dispute resolution procedures, which they had.
However, the lists of equal pay comparators described in the grievances differed from those in the tribunal applications. The employer argued that, where a class of comparator had been included in the tribunal application but not in the statement of grievance, the tribunal should strike out that class of comparator. The employees argued that the comparators were examples, but the type of comparator had not changed. The substance of the grievances and the claims were the same. They also argued that the statutory grievance procedures did not require comparators to be identified.
The employment tribunal held that the employees’ grievances and tribunal applications made clear that their claims related to equal pay. The substance of the grievances and the claims was the same and the statutory grievance procedure had been complied with.
The EAT held that comparators should be specified in a grievance. Without this an employer could not be expected to appreciate that a relevant complaint was being made. The tribunal should have established that every complaint was the same as that in the grievances. The employees appealed.
The Court of Session agreed that what should be looked at was whether there was some correlation between the grievance being relied on and the claim submitted, although the language might be different and there might be earlier communications between the parties providing context for interpreting the grievance. Whether there was a relationship between the two was a question of fact for the tribunal to resolve. It was not clear how far the tribunal in this case had gone to reach its conclusion that the substance of the grievances and that of the claims were the same, therefore the case should be remitted back to the employment tribunal to consider whether the tribunal claims were essentially the same as the grievances.
And again......
Mrs Riley left her employment in August 2006. In January 2007 she wrote to First Choice stating that her letter, which concerned equal pay, was a step-one grievance letter. She asked First Choice to confirm whether use of the modified statutory grievance procedure was appropriate. First Choice agreed and requested more information about her equal pay comparators, stating that the process would be more meaningful if the information was supplied. The information was not forthcoming. In Mrs Riley’s her equal pay claim in the employment tribunal, the comparators were different from those set out in the step-one letter. It appears that Mrs Riley later changed her mind about the modified procedure being the appropriate procedure.
For the modified procedure to apply the parties must agree to its use in writing. Mrs Riley argued that First Choice's agreement was conditional on the receipt of further information and that a conditional agreement was not an actual agreement. The employment tribunal and EAT disagreed. The employer's letter included an unconditional acceptance that the modified procedure would apply.
Note:
Under the modified procedure the employee must identify in the step-one letter not only the grievance but also the basis for it.
Under the standard procedure the employee must inform the employer of the basis of the grievance before the meeting, but this does not need to be done in the step-one letter.
The issue then was whether Mrs Riley had met its requirements: although the basis of some claim had been identified in the step-one letter, it was not the same or a substantially similar claim as that lodged with the tribunal. Sufficient information to enable the employer to address the grievance had not been provided. Therefore Mrs Riley had failed to comply with the modified procedure and the tribunal had no jurisdiction to hear her equal pay claim. |