Birmingham City Council v Akhtar & Ors

In mass equal-pay litigation, tribunals should readily permit correction of accidental job-title misdescriptions, subject to real prejudice, jurisdictional obstacles, abuse or contumelious default. The respondent bears the practical onus of identifying specific prejudice sufficient to justify refusal.

Employees in community schools may compare themselves with other employees of the same local authority where the governing body’s role in recommending terms does not make it the true source of those terms. The Employment Act 2002 dispute-resolution provisions should be applied purposively, but the modified grievance procedure requires the employee’s initial statement to identify the essential basis of the grievance unless the collective-grievance provisions apply.

These conjoined appeals arose from interlocutory decisions in extensive equal-pay proceedings brought by employees and former employees of Birmingham City Council. The appeals concerned three issues: correction of job-title misdescriptions; whether non-teaching employees in community schools were in the same employment as Council employees elsewhere; and compliance with the statutory grievance regime under the Employment Act 2002.

The Employment Tribunal permitted some amendments, refused others, held that the school-employed claimants satisfied the same-employment requirement, and held that the grievance requirements were met. The central questions were whether the Tribunal had exercised its amendment discretion lawfully, whether a single-source requirement limited section 1(6) of the Equal Pay Act 1970, and whether the grievances complied with the applicable procedure.

1. Job-title amendments. In mass litigation, accidental errors in identifying a claimant’s job should generally be corrected where the respondent cannot show real prejudice or a jurisdictional impediment. The fact that an amendment might technically substitute a new cause of action, that the error was unexplained or late, or that a fresh claim would be out of time, is not automatically decisive. The Tribunal had reached the only proper result in allowing the LTS amendments, and the Council’s appeal was dismissed.
2. The refusal of the non-LTS amendments was irrational because the Tribunal identified no specific prejudice distinguishing those cases from the LTS cases. The claimants’ appeals were allowed. The anomalous refusal in Ms Pitt’s case could not stand because like cases had to be treated alike.
3. School-employed claimants. The Tribunal was right not to require further factual findings on the single-source issue. Following North Cumbria Acute Hospitals NHS Trust v Potter, the EAT would depart only if that decision were plainly wrong, which it was not. The statutory arrangements did not make school governing bodies the true source of the terms and conditions. The reasoning in South Tyneside Metropolitan Borough Council v Anderson was directly applicable. In any event, the natural construction of section 1(6) did not require a single-source gloss. The Council’s appeal was dismissed.
4. Section 32 appeal. The modified procedure required the employee’s initial grievance to state the essential reasons for the complaint in sufficient detail to enable a substantive response. A bare assertion of an equal-pay claim by reference to male comparators was insufficient. However, collective grievances under regulation 9 could satisfy the statutory requirements without stating the basis of the grievance, and the provisions were to be applied so as to avoid procedural traps unrelated to their purpose. UNISON types 1 and 16, type 3, and GMB types 1 and 2a were treated as collective grievances. For UNISON types 6b, 7b and 8, jurisdiction was limited to claims based on the named comparator classes.
5. A party who had agreed in writing to the modified procedure could not simply withdraw that agreement. A later collective grievance under regulation 9 could, however, supersede the individual grievance. The Council’s appeal was dismissed, subject to the declaration concerning the named comparators.

• Employment Appeal Tribunal: dismissed the Council’s appeals on the LTS amendments, school-employed claimants and section 32 issues, allowed the claimants’ appeals concerning non-LTS amendments, and declared that jurisdiction over UNISON types 6b, 7b and 8 was confined to claims involving the named comparator classes.
• Employment Tribunal: made the interlocutory decisions under appeal following hearings in 2009.