Suffolk Mental Health Partnership NHS Trust v Hurst & Ors

For the statutory standard grievance procedure governing an equal pay claim, an employee sufficiently sets out the grievance by informing the employer in writing that the claim arises under the Equal Pay Act 1970. The employee need not identify comparators or provide detailed particulars at that stage. The basis and supporting details may ordinarily be supplied during the subsequent grievance process.

A later tribunal claim correlates with the grievance where the same essential grievance underlies both, notwithstanding later particularisation. This approach avoids turning the procedure into a technical barrier to access to a tribunal. Exceptionally, a purported grievance which misleads, distracts or abuses the procedure may be invalid.

Employees of an NHS trust and a local authority presented individual or collective grievances alleging unequal pay. Some grievances identified the Equal Pay Act 1970 but did not name comparators or particularise the precise legal basis of comparison. The subsequent tribunal claims supplied further details.

The Employment Appeal Tribunal held that the statutory grievance requirements had been met and that the Employment Tribunals had jurisdiction. The employers appealed. The central questions were whether the written grievances complied with section 32 of the Employment Act 2002 and whether each subsequent tribunal claim contained essentially the same complaint as the relevant grievance.

1. The appeals were dismissed unanimously. Pill LJ gave the leading judgment. Wall LJ agreed and expressly adopted Pill LJ’s conclusions. Etherton LJ also agreed.

2. For these equal pay claims, paragraph 6 of Schedule 2 to the Employment Act 2002 required only a written statement identifying the grievance as a claim under the Equal Pay Act 1970. Identification of comparators and full particulars of the claim were unnecessary at the first stage. Such a statement identifies the employer’s alleged failure to pay the employee equally with a comparable man and excludes unrelated employment claims.

3. The statutory language distinguishes the grievance from its basis. Under the standard procedure, the basis may be supplied before the stage-two meeting. By contrast, the modified procedure expressly requires both the grievance and its basis in writing. Wall LJ considered that distinction strongly supportive, if not conclusive, of the employees’ construction.

4. The same meaning of “grievance” applies to individual and collective grievances. The absence of compulsory meetings for a collective grievance does not justify imposing a more detailed first-stage requirement. The legislation assumes responsible dialogue between collective representatives and employers.

5. The correlation principle asks whether essentially the same grievance underlies the written grievance and the later tribunal claim. A general equal pay grievance therefore correlates with an equal pay claim even though the tribunal claim later identifies comparators or provides other details. Requiring successive grievances as information emerged would create delay, limitation difficulties and possible loss of arrears.

6. The court preferred the approach of Elias J to Lady Smith’s reasoning in Highland Council v TGWU. Equal pay claims are complex and employees will commonly lack information held by the employer. A technical particularisation requirement would create an unintended and substantial obstacle to tribunal access.

7. The ruling did not give prospective claimants unrestricted permission to use only a legal label in every kind of employment dispute. Facts will often be readily available and appropriately stated. A purported grievance which so misleads or distracts as to abuse the statutory procedure may fail to comply, although such cases should be rare.

• Court of Appeal (Civil Division): Dismissed both employers’ appeals and upheld the Employment Appeal Tribunal’s conclusion that the Employment Tribunals had jurisdiction: [2009] EWCA Civ 309.
• Employment Appeal Tribunal: Elias J, sitting as President in three cases heard together, held that the individual and collective grievances complied with section 32 of the Employment Act 2002 and that the Employment Tribunals had jurisdiction: UKEAT/0332/08/RN.
• Employment Tribunals: The tribunal in the Suffolk cases found compliance with paragraph 6. The tribunal in the Sandwell cases held that the requirements had not been met and struck out the claims.