Birmingham City Council v Barker

It is not correct to refuse correction of innocuous job‑title errors in mass equal pay litigation on purely procedural grounds; tribunals should permit amendments to job descriptions unless real prejudice, a jurisdictional bar, or abuse is shown.

The phrase "same employment" in section 1(6) of the Equal Pay Act 1970 does not require reading in a distinct EU "single source" limitation where the employer remains the legal source of terms; earlier Tribunal authority on that point is to be followed. Collective grievance letters sent by a recognised representative can satisfy the Regulations' written‑grievance requirements in appropriate circumstances.

This is an Employment Appeal Tribunal judgment arising from multiple interlocutory rulings in large equal pay litigation against Birmingham City Council. The appeals address three core procedural questions: (A) whether claimants may amend misdescribed job titles in their ET1s; (B) whether non‑teaching staff employed in community schools can compare themselves with other council employees for equal pay purposes, or whether a "single source" rule prevents such comparisons; and (C) whether certain grievance letters complied with the dispute resolution regime in the Employment Act 2002 (Schedule 2 and the 2004 Regulations), so as to preserve Tribunal jurisdiction. The EAT heard argument on the Tribunal's exercise of discretion, statutory interpretation of section 1(6) of the Equal Pay Act 1970, and the application of regs 6 and 9 of the 2004 Regulations. The central questions are whether amendments should have been permitted, whether the "same employment" test requires a "single source" gloss, and whether various union or solicitor grievance letters satisfied the modified or collective grievance rules.

(1) Overall disposition: The appeals were resolved case by case. The EAT dismissed the Council's appeal against permission to amend in the common LTS cases, allowed claimants' appeals in the non‑LTS amendment cases, dismissed the Council's "single source" appeal on the school‑employed claimants point, and dismissed the Council's section 32 appeals subject to a limited qualification about certain grievance forms (orders described below).

(2) Amendment of job descriptions (ratio): In mass equal pay litigation tribunals should be ready to permit correction of innocuous misdescriptions of job titles. The correct approach is to allow amendments unless the respondent proves real prejudice, a jurisdictional bar, abuse, or other decisive reason to refuse. Factors such as lateness or lack of explanation are relevant but will normally be insufficient where the amendment merely changes a label and does not fundamentally alter the issues to be tried. The EAT applied and refined the balancing approach adopted in prior authorities and emphasised practical justice in large collective litigation (see paras [13]; [16]; [27]; [30]-[35]).

(3) Application to the LTS and non‑LTS cases: The Tribunal had been entitled to permit amendment in the LTS cases where the change was a relabelling and caused no real difficulty to the Council. The Council's challenge to those decisions was dismissed. By contrast, the Tribunal's refusal to permit amendment in a number of non‑LTS cases was irrational where no specific prejudice was identified. The EAT allowed the claimants' appeals in the non‑LTS group and remitted none of those matters because the correct result was apparent (paras [27]; [31]-[35]).

(4) Jurisdictional time/section 32 points: The EAT refused to permit belated reliance on an absolute jurisdictional bar based on section 32(2) where the point had not been taken below. It also held that even where a fresh claim based on a corrected job might be time‑barred, that factor alone was unlikely to outweigh the strong policy in favour of permitting corrections in the mass litigation context (paras [17]; [20]-[26]).

(5) "Same employment" and the single source argument: The EAT followed Tribunal authority in rejecting a requirement that section 1(6) be read as importing a freestanding EU "single source" limitation for the school‑employed claimants. The School Staffing Regulations and the reasoning in [2007] ICR 1581 (South Tyneside v Anderson) indicate that local authority control over grading and remuneration is sufficient to treat non‑teaching staff in community schools as in the same employment as other council staff. The Council's appeal on this point was dismissed (paras [37]-[53]).

(6) Dispute resolution regime, reg. 9 and section 32(2): The EAT reviewed Pratt and related authorities. It held that certain collective grievance letters sent by unions or lodged by unions by e‑mail could satisfy reg. 9 of the 2004 Regulations and thus avoid the jurisdictional bar in s.32(2). The EAT sustained the Tribunal's jurisdiction in relation to the many cases where UNISON and GMB collective or pooled grievance communications were sent, although it limited jurisdiction for some claimants whose grievance forms only named specific comparators (paras [54]-[89]).

(7) Withdrawal of agreement to the modified procedure: A party who has validly agreed to use the modified procedure is generally bound by that choice and cannot withdraw it so as to treat the matter as if the standard procedure applied, except where a collective grievance under reg. 9 subsequently supersedes the earlier choice (paras [92]-[97]).

(8) Orders and practical consequences: The Council's appeal against the grant of amendments in the LTS cases was dismissed. The claimants' appeals against refusal to amend in the non‑LTS cases were allowed. The Council's school‑employed comparison appeal was dismissed. The Council's section 32 appeal was dismissed, subject to the qualification that where grievance letters of types UNISON 6b/7b/8 were used jurisdiction was limited to the comparators specifically named in the grievance (paras [27]; [35]; [53]; [98]).

1. Employment Tribunal (Birmingham): interlocutory decisions on amendment, "same employment" and jurisdiction; decisions promulgated 5 November 2009 and considered on appeal to the EAT. (See Reasons of Employment Judge van Gelder.)
2. Employment Appeal Tribunal: Judgment of Underhill J. dismissing some Council grounds, allowing claimants' appeals on other amendment points, rejecting the "single source" gloss on section 1(6) and upholding Tribunal jurisdiction in respect of most grievance forms (9 May 2011) (this judgment).