West Dunbartonshire Council v Smith & Ors

Compliance with the standard statutory grievance procedure requires the grievance and the later tribunal complaint to concern essentially the same complaint. Where comparators specified in the grievance differ from those later pleaded, the tribunal must conduct a qualitative comparison. Each comparator may constitute a separate claim.

A grievance alleging work rated as equivalent does not, without more, give notice of a distinct claim that the work is of equal value. The latter involves a different assessment and requires the employer to have an opportunity to consider and resolve that issue.

Female employees brought equal pay claims against a local authority. The Employment Tribunal held that the claimants had complied with section 32 of the Employment Act 2002 and that it had jurisdiction.

The grievances and ET1 forms differed in the comparators relied upon. In some claims, the grievances referred to work rated as equivalent, while the ET1 forms also advanced claims based on work of equal value. The Employment Appeal Tribunal considered whether the tribunal had applied the required correlation exercise and whether those differences affected compliance with section 32.

1. Appeal allowed in part and claims remitted. The Employment Tribunal erred by treating Arnold v Sandwell Metropolitan Borough Council [2009] IRLR 12 as removing the need for a comparative exercise. It was directed to determine, for each claimant, whether the grievance underlying the ET1 was essentially the same complaint as the earlier grievance.
2. Under the standard procedure, the grievance must be set out in writing and sent to the employer at least 28 days before presentation of the tribunal complaint. The relevant question is whether the later complaint and grievance are essentially the same, recognising that the documents serve different functions. The assessment must be broad and non-technical, but remains qualitative.
3. Each claim by reference to a different comparator is analytically a different claim. Claims may proceed for comparators identified in the grievance where there is correlation, while additional comparisons may be excluded.
4. The distinction between work rated as equivalent and work of equal value is material. The former directs the employer to objective job-evaluation material. The latter requires consideration of a different substantive assertion. Where an equal-value claim appeared for the first time in the ET1, section 32 had not been complied with.
5. The group 2 equal-value claims were therefore excluded, while conceded claims were treated as compliant. The remaining correlation issues were remitted to the same Employment Tribunal.

• Employment Tribunal, Glasgow: by judgment registered on 2 June 2010, held that the claimants had complied with section 32 of the Employment Act 2002 and that it had jurisdiction.
• Employment Appeal Tribunal: allowed the appeal in part, excluded the group 2 claims insofar as they relied on section 1(2)(c) of the Equal Pay Act 1970, and remitted the remaining correlation issues.