Essentially The Same Or Do Not Pass Go

Dundee City Council v McDermott & Others UKEATS/0026/10 Perth & Kinross Council v Amery & Others UKEATS/0027/10

The EAT has issued its decision in an appeal in which MacRoberts LLP acted on behalf of the successful local authority Appellants on the extent to which an equal pay claim need correspond with the supporting grievance in order to comply with Section 32 of the Employment Act 2002 (now repealed).

Under Section 32, employees were required to submit a grievance before presenting a claim to the Employment Tribunal. Failure to do so would result in their claim being barred. There has been extensive litigation about what constituted a grievance, particularly in the context of the thousands of equal pay claims raised against local authorities across the UK, where it has been common for Claimants to state in their grievance that they are entitled to equal pay when compared with certain specified posts within the local authority but then to identify different and/or additional comparator posts in their tribunal claim.

Lady Smith held that the Dundee Employment Tribunal had erred in law in finding that compliance with Section 32 was achieved simply if the grievance was about equal pay, and the claim to the Tribunal was a complaint about equal pay, where in some cases the comparators identified in the grievance and in the subsequent ET1 were materially different.

The Employment Judge had referred to Suffolk Mental Health Partnership NHS Trust & Others v Hurst & Others [2009] IRLR 12, where the Court of Appeal had found that a grievance about equal pay need only be "in the most general terms". Lady Smith concluded that the Court of Appeal's decision was not the appropriate authority where the Claimants had chosen to identify comparators in their grievance and the relevant binding authority was Cannop & Others v Highland Council [2008] IRLR 634, where the Court of Session considered that the grievance underlying the ET1 must be "essentially the same" as the earlier intimated grievance.

Lady Smith commented in relation to...