Birmingham City Council v Beck & Ors (Barker multiple)

In mass equal-pay litigation, tribunals should be ready to permit correction of accidental job-title misdescriptions, subject to real prejudice, jurisdictional objections and abuse. The respondent bears the practical burden of showing why correction should not be allowed. A claim may compare employees in community schools with other employees of the same local authority where the establishment criterion is satisfied; a separate “single source” requirement is not generally to be implied into the Equal Pay Act 1970.

Under the modified grievance procedure, the initial grievance must state its basis sufficiently to enable a substantive response. However, a union grievance satisfying reg. 9 of the 2004 Regulations may avoid that requirement. Agreement to use the modified procedure cannot ordinarily be withdrawn, although a later collective grievance may engage reg. 9.

The judgment concerned eighteen interlocutory appeals arising from mass equal-pay claims brought against Birmingham City Council. The appeals involved three groups: applications to amend incorrect job descriptions; whether non-teaching staff employed in community schools could compare themselves with Council employees elsewhere; and whether grievances complied with the statutory dispute-resolution regime under the Employment Act 2002.

The Employment Tribunal had allowed some amendments and refused others, held that school-employed claimants could rely on Council comparators, and rejected the Council’s jurisdictional challenge concerning grievances. The central questions were whether the amendments should be permitted, whether a “single source” limitation applied, and whether the grievances complied with the applicable statutory procedure.

1. Job-title amendments. Appeals by the Council against amendments in the LTS cases were dismissed. Appeals by claimants in the non-LTS cases were allowed. In mass litigation, accidental errors in job descriptions should generally be corrected unless the respondent identifies real prejudice, a jurisdictional bar or abuse. The fact that an amendment may technically substitute a new cause of action is not decisive. Delay, lack of explanation and an out-of-time fresh claim are relevant, but in these circumstances they carried little weight because the claims were already in time, the errors were venial and the relevant jobs and comparators were already within the litigation. The Tribunal’s inconsistent treatment of like cases was irrational. The application in Vera Pitt’s case could not properly be treated differently from materially identical cases. No remission was required because the decisions were the only proper decisions.
2. School-employed claimants. The Council’s appeal was dismissed. The EAT followed North Cumbria Acute Hospitals NHS Trust v Potter and held that the “single source” argument did not prevent comparison under section 1(6) of the Equal Pay Act 1970. The school governing bodies’ powers under the School Staffing (England) Regulations 2003 did not make them the true source of the terms. In any event, the Act could lawfully permit wider comparisons than EU law required. Any different terms imposed because another person controlled remuneration would probably support a section 1(3) defence.
3. Section 32 appeal. The Council’s appeal was dismissed, but jurisdiction was limited for claimants using UNISON types 6b, 7b and 8 to comparisons with the comparator classes named in their grievances. Modified-procedure grievances had to state the essential reasons for the complaint. The Council’s subsequent response could not cure that defect. Nevertheless, grievances lodged by unions could satisfy reg. 9 where, objectively, the union had adopted the grievances and specified that it raised the same grievance for other employees. The type 1, type 3 and GMB forms therefore fell within reg. 9. Consent to the modified procedure could not ordinarily be withdrawn, although a subsequent collective grievance could supersede the individual procedure.

• Employment Appeal Tribunal: appeals arising from interlocutory Employment Tribunal decisions were determined. The Council’s appeal on school-employed claimants and its section 32 appeal were dismissed, subject to the declaration limiting some claims to named comparator classes. Claimant appeals on non-LTS amendments were allowed, and the Council’s appeal on LTS amendments was dismissed.