Dundee City Council v McDermott (Perth and Kinross Council v Amery)

Under the standard statutory grievance procedure, an employment tribunal must assess whether the grievance and the later claim are essentially the same complaint. Where the grievance identifies comparators and the ET1 identifies materially different comparators, it is insufficient that both documents concern equal pay. A qualitative, comparator-by-comparator assessment is required. The claim may proceed to the extent that the necessary correlation exists, while newly introduced comparisons may be excluded. The general and non-technical approach applicable to grievances does not permit material particulars deliberately specified in the grievance to be disregarded.

Female employees brought equal pay claims against Dundee City Council and Perth and Kinross Council. The Employment Tribunal held that section 32 of the Employment Act 2002 did not prevent the claims proceeding.

The parties agreed that comparators had been named in some grievances and that, in some cases, the comparators in the ET1 were materially different. The Employment Tribunal did not compare the grievances with the ET1s. It held that both documents concerned equal pay claims and that this was sufficient compliance.

The appeals concerned whether the statutory grievance requirements required a qualitative assessment of the relationship between the specified comparators and the later claims.

1. Appeals allowed and cases remitted. The Employment Tribunal was directed to consider, in each case, whether the grievance underlying the ET1 was essentially the same as the earlier grievance.
2. Under section 32 of the Employment Act 2002 and Schedule 2 Part 2, paragraph 6, the standard procedure requires the employee to set out the grievance in writing and send it to the employer at least 28 days before presenting the tribunal complaint. The grievance must identify the complaint, while the basis of the complaint is dealt with at the later stage of the standard procedure.
3. The relevant comparison is whether the tribunal claim is essentially the same grievance as that previously communicated. The assessment is broad and non-technical, and the grievance may be read in context. However, where comparators have been specified, the tribunal must undertake a qualitative assessment of whether the differences make the later complaint materially different.
4. Each claim by reference to a different comparator is analytically a separate claim or cause of action. Accordingly, a claimant who identified comparators A, B and C in the grievance but added D, E and F in the ET1 may proceed in respect of A, B and C if correlation exists, but not necessarily in respect of D, E and F.
5. The approach in Sandwell concerned grievances expressed in very general terms and did not decide the materially different situation where comparators were specified. The binding decision in Cannop required the necessary qualitative exercise. The Employment Tribunal therefore erred in treating the common equal-pay character of the grievances and claims as sufficient.

• Employment Appeal Tribunal: the appeals from the Employment Tribunal decisions registered on 8 February 2010 and 1 March 2010 were allowed and all cases were remitted to the same Employment Tribunal.