Brett & Ors v Hampshire County Council

For statutory grievance purposes, each equal-pay comparison gives rise to a distinct claim. A failure to correlate one comparator does not bar claims based on other comparators for which the grievance gave the employer an opportunity to investigate the complaint.

A collective grievance is ineffective where it positively misidentifies the claimant’s job, but the error may be corrected in writing before proceedings are issued. A collective grievance may sufficiently identify contingent male equal-pay claims by necessary implication. A withdrawn grievance may be revived only in writing.

The appeal arose from preliminary jurisdictional decisions in related equal-pay claims brought against Hampshire County Council. The Employment Tribunal held that certain claimants had failed to comply with the statutory grievance requirements under section 32 of the Employment Act 2002.

The appeal concerned four issues: whether individual comparator claims could proceed where only some correlated with the grievance; whether collective grievances were invalid because some employees’ jobs were misdescribed; whether male claimants’ contingent claims were sufficiently identified; and whether a withdrawn grievance had been revived orally.

1. Issue B. Each claim based on a different comparator is analytically a distinct claim. The correlation requirement therefore had to be considered separately for each comparison. Mrs Brett could proceed with claims based on the Storeman Driver and Technician jobs, because those comparisons had been identified in her grievance. The claims based on the two Mobile Library Driver/Assistant jobs could not proceed because those jobs differed from the Mobile Library Assistant job identified in the grievance. The appeal was allowed in part on this issue.
2. Issue D2. Where a claimant positively identifies her job in a collective grievance and identifies the wrong job, the grievance does not properly set out the grievance under regulation 9(1)(a) of the Employment Act 2002 (Dispute Resolution) Regulations 2004. The risk is particularly material in collective grievances, where the employer may investigate the wrong category of work. Nevertheless, an initial misdescription may be corrected by an appropriate written document before proceedings are issued. The issue was remitted to the Employment Tribunal to determine, claimant by claimant, whether correction occurred before issue, without prejudice to any point under section 32(3) of the Employment Act 2002.
3. Issue G. Regulation 9(1)(a) requires the nature of the claim to be set out, but a matter may be sufficiently stated by necessary implication. The presence of four male claimants in a predominantly female equal-pay schedule made it obvious that contingent or piggyback claims were intended. The appeal was allowed.
4. Issue I. A grievance must remain extant. An unequivocally withdrawn grievance could be revived, but only by a document in writing. Oral discussions could not reinstate it. The appeal on this issue was dismissed.

• Employment Tribunal, Southampton: Employment Judge Kolanko decided preliminary jurisdictional issues in reasons sent on 1 September 2008 and held that the relevant claimants had not complied with the statutory grievance procedure.
• Employment Appeal Tribunal: The appeal was allowed in part, with Issue D2 remitted for reconsideration, and dismissed on Issue I.