Reddy & Ors v. The Bedfordshire & Luton Partnership NHS Trust

For the purposes of regulation 9(1)(a) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, a collective grievance is written to the employer when the employer receives the written grievance. The provision does not require the employee’s representative to send it directly to the employer. Compliance must be assessed by substance rather than technicality, consistently with the statutory purpose of encouraging discussion, conciliation and settlement. The collective procedure should not impose a higher hurdle than the standard grievance procedure. Receipt through an unexpected method of transmission may suffice where the grievance identifies the employer or its relevant representative and the employer in fact receives it.

The claimants, formerly employed by Bedfordshire County Council, were transferred or seconded to the respondent NHS Trust in the context of reorganised mental health services and TUPE arrangements. They brought equal pay claims arising from the Council’s single-status job evaluation process.

A union representative sent a written collective grievance to the Council, marking it for the attention of an HR director at the Trust, although the Trust was incorrectly identified as another organisation. The Council later forwarded the grievance to the Trust, which received it. The Employment Tribunal held that regulation 9(1)(a) required the representative to send the grievance to the employer directly and concluded that there was no jurisdiction. The appeal concerned whether indirect receipt satisfied the requirement that the representative had written to the employer.

1. Appeal allowed. The Employment Tribunal had jurisdiction to hear and determine the equal pay claims.
2. Section 32 of the Employment Act 2002 made compliance with the statutory grievance procedures a jurisdictional requirement at the relevant time. Regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provided an alternative collective route to compliance with paragraph 6 of Schedule 2, Part 2.
3. The Tribunal erred by importing into regulation 9 the standard-procedure requirement that the grievance be sent to the employer. The words written to the employer do not require direct transmission by the employee’s representative, provided that the employer receives what has been written.
4. The statutory procedures must be construed purposively. Compliance is not to be assessed in an unduly technical or legalistic manner. The focus is on substance, and the threshold should not be burdened with arbitrary obstacles, particularly in equal pay claims.
5. The grievance was plainly written to the Trust. The Trust’s relevant HR director was identified and copied in, had been informed that the grievance was forthcoming, and subsequently received it when the Council forwarded the document. The mistaken reference to another organisation did not prevent the grievance from being communicated to the Trust.
6. The Trust had long been aware of the potential claims and had ample opportunity to respond. The indirect transmission caused no prejudice and did not undermine the statutory purpose.

• Employment Appeal Tribunal: allowed the appeal against the Bedford Employment Tribunal’s decision dated 15 October 2009 and held that the Tribunal had jurisdiction.