Birch & 99 Others v Walsall Metropolitan Borough Council & Ors

Compliance with the statutory grievance procedure is determined by substance, not by the document’s heading or form. A document may serve a dual purpose: it may contain a valid Step 1 grievance and also ask questions or seek information under section 7B of the Equal Pay Act 1970. Regulation 14 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 excludes the questions from constituting the grievance, but does not invalidate the whole document where the remaining complaint satisfies the statutory requirements. The approach avoids technical or disproportionate exclusion from the tribunal.

The appellants were 100 women pursuing multiple public-sector equal pay claims. Before presenting their tribunal claims, they sent substantially identical written documents to their employers. The documents complained of unequal pay and sought information, but one group used a heading referring both to a statutory grievance and to questions under section 7B of the Equal Pay Act 1970 (Type A), while the other referred only to a statutory grievance (Type B).

At a pre-hearing review, the Employment Judge held that the Type A documents were invalidated by regulation 14, but that the Type B documents were valid because of their heading. The appeal and cross-appeal raised the common question whether the inclusion of questions or information requests prevented an otherwise compliant grievance from satisfying Step 1.

1. Appeal allowed; cross-appeal dismissed. The Tribunal had jurisdiction to determine the Type A claims, and that finding was substituted. The Type B decision stood, although the distinction based on the headings was unsustainable.
2. The statutory grievance procedure required a substantive and non-technical assessment. The relevant question was whether, on a fair reading and in context, the employer could appreciate that the complaint was being raised. The heading of the document was not determinative.
3. The documents contained statements complaining that the claimants were paid less than named male comparators. The Employment Judge had correctly found that those statements were sufficient grievances for section 32(2) of the Employment Act 2002.
4. Regulation 14 prevented questions asked under section 7B from constituting a statement of grievance. It did not require the whole document to be disregarded. The documents were properly treated as dual-purpose documents. The questions and requests for information could be excised, leaving the substantive complaints intact and compliant with Step 1.
5. Holc-Gale v Makers UK Ltd [2006] ICR 462 did not decide that every document containing both a grievance and questions was invalid. It concerned a prescribed questionnaire submitted as a precursor to litigation, on facts materially different from the present case.
6. The domestic-law conclusion made it unnecessary to determine the alternative EU-law submissions or the proposed reference to the Court of Justice.

1. Employment Appeal Tribunal: The appeal from the Employment Judge’s pre-hearing review decision was allowed. The finding that the Type A claimants had failed to comply with Step 1 was set aside and jurisdiction to determine their claims was substituted. The respondents’ cross-appeal concerning the Type B claimants was dismissed.