East Dunbartonshire Council v Trade Union Backed Claimants & Anor

An Employment Tribunal has a discretion to permit an amendment adding a new comparator to an equal pay claim, even where the claim would have been out of time if presented afresh. Limitation is a relevant and potentially weighty factor, but it does not compel refusal of the amendment.

Section 31 of the Employment Act 2002 permits compensation to be adjusted only where the relevant statutory grievance procedure applied and had not been completed before proceedings began. Later identification of additional comparators cannot retrospectively establish non-compliance with that procedure.

The Claimants had brought equal pay claims and later applied to amend them by adding further male comparator posts. The Employment Tribunal allowed the applications. Two Trade Union backed Claimants had left employment more than six months before the applications, so fresh claims naming the new comparators would have been time barred.

The Respondent appealed, arguing that amendment was therefore impermissible and that the Tribunal had wrongly treated the absence of the new comparators from the original grievance as capable of reducing compensation under section 31 of the Employment Act 2002.

1. The appeal was upheld. The Employment Tribunal’s judgment allowing amendment was set aside, and the applications were remitted to the same Employment Judge for reconsideration.

2. Section 31(2) of the Employment Act 2002 permits an adjustment to compensation only where the relevant statutory procedure applied and was not completed before proceedings began. For the statutory grievance procedure, compliance was assessed at the date of presentation of the claims. The Claimants had already intimated grievances in writing concerning unequal pay, identified their existing comparators, informed the Respondent of the basis of the grievances and attended, or taken reasonable steps to attend, the grievance meeting.

3. The later addition of new comparators could not satisfy the statutory conditions for reducing compensation. The Employment Judge had therefore erred in treating that matter as a possible basis for a compensatory reduction.

4. There was no rule of law that an amendment must be refused merely because the claim it introduced would have been time barred if presented as a fresh claim. The relevant time limit under section 2ZA of the Equal Pay Act 1970 could not be extended, but that did not remove the Tribunal’s amendment discretion. Limitation remained a relevant factor which might carry substantial weight, depending on the circumstances.

5. The discretion arose under paragraph 10(2)(q) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. The Employment Judge had placed significant weight on the erroneous possibility of reducing compensation, so the amendment decision required reconsideration.

• Employment Appeal Tribunal: The appeal from the Employment Tribunal’s judgment registered on 18 November 2009 was upheld. The judgment allowing amendment was set aside and the applications were remitted to the same Employment Judge.