Sefton Metropolitan Borough Council v Hincks

For the standard grievance procedure, an equal pay grievance need not identify every comparator. Naming one comparator does not limit the grievance so that later comparators become jurisdictionally barred. The material question under section 32(2) of the Employment Act 2002 is whether the tribunal complaint and the grievance are substantially the same. Additional comparator detail may be treated as voluntary further particulars.

In mass equal pay litigation, amendment applications should be assessed by fairness and actual prejudice. The fact that an amendment introduces a new cause of action is not, by itself, a bar. Amendments should not be refused purely punitively where the relevant factual and legal issues are already substantially present.

The respondents appealed against two interlocutory decisions in consolidated equal pay proceedings involving approximately 300 claimants. The claimants’ written grievances identified one comparator job, while their ET1s identified additional comparator jobs. They later sought permission to amend to rely on further jobs already included in a consolidated schedule used by other claimants.

The Employment Judge declined to strike out the additional comparators and allowed the amendments. The respondents argued that section 32(2) of the Employment Act 2002 deprived the Employment Tribunal of jurisdiction because separate grievances had not been lodged for each comparator, and that amendment should in any event be refused.

1. Appeal dismissed. The claimants’ grievances complied with paragraph 6 of Schedule 2 to the Employment Act 2002. That paragraph required the grievance to be set out in writing and sent to the employer. It did not require the employee to identify every fact necessary to establish the basis of an equal pay claim.
2. The correlation principle required substantial correspondence between the grievance and the tribunal complaint. Following Suffolk Mental Health NHS Trust v Hurst [2009] ICR 1011, the fact that claimants supplied additional detail by naming a comparator did not limit the underlying grievance to that comparator. The additional detail could be regarded as voluntary further particulars.
3. Brett v Hampshire County Council (UKEAT/0500/08/JOJ) was distinguishable. The material issue there concerned a grievance which misidentified the claimant’s own job, potentially diverting the employer’s investigation. Here, the employer knew the claimant’s job and would merely have needed further enquiries concerning the basis of the equal pay claim. The modified procedure was materially different because it required the employee to set out the basis of the grievance.
4. The amendments were properly allowed as a matter of discretion. Although they introduced new causes of action, that was not an absolute bar, as recognised in Transport and General Workers Union v Safeway Stores Ltd (UKEAT/0092/07). The prejudice to the claimants if confined to one comparator was serious, while the new comparators and associated issues were already substantially present in the mass litigation. Refusal would have been punitive and potentially unjust.

• Employment Tribunal: Employment Judge Robinson declined to strike out comparator claims not mentioned in the grievances and permitted amendments, in Reasons sent on 20 January 2011.
• Employment Appeal Tribunal: Appeal dismissed.