Birmingham City Council v Akhtar & Ors

Statutory grievance requirements must be applied in their legislative and factual context, without undue technicality, while respecting the elements prescribed by Parliament. Under regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, a union representative may satisfy the collective-grievance requirements by writing to the employer, setting out the grievance, and specifying in writing at least two employees, one of whom has the grievance, on whose behalf it is raised. Documents prepared intending to use the modified procedure may nevertheless attract regulation 9, and no separate intention to act under that regulation is required. Documents may be read together. The modified procedure still requires enough detail to enable a substantial response, but that issue need not determine the appeal where regulation 9 is satisfied.

Birmingham City Council appealed against an Employment Appeal Tribunal decision concerning 132 equal pay claims brought under the Equal Pay Act 1970. The Employment Tribunal had held that the claimants’ grievances complied with the statutory grievance procedure. The Employment Appeal Tribunal considered that the modified procedure had not been satisfied, but held that regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 deemed the statutory procedure complied with.

The appeal concerned union-submitted grievance documents, including documents intended to invoke the modified procedure. The central issues were whether the documents satisfied paragraph 9 of Schedule 2 to the Employment Act 2002, and whether regulation 9 applied despite the absence of an express intention to use it.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Pill gave the judgment, with which Lord Carnwath and Lord Justice Patten agreed.

1. Jurisdictional framework. Section 32 of the Employment Act 2002 prevented an employee from presenting a complaint where an applicable statutory grievance requirement had not been complied with. In that event, the Employment Tribunal had no jurisdiction.
2. Regulation 9. Regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 had to be interpreted in context. The relevant considerations were whether an appropriate representative had written to the employer setting out the grievance, whether at least two employees, including the employee with the grievance, had been specified in writing, and whether the grievance was raised on their behalf.
3. The unions were plainly acting for the respondents in a long-standing dispute whose issues were well known to both sides. The documents could be read together. A letter signed by a union representative, or submitted by that representative, was sufficient writing under regulation 9(1)(a). The names of the required employees were specified in writing under regulation 9(1)(b). Documents prepared with the modified procedure in mind could attract regulation 9; no intention to act under regulation 9 was required. The approach accorded with Cannop & Ors v Highland Council [2008] CSIH 38 and the contextual approach discussed in Canary Wharf Management Ltd v Edebi [2006] ICR 719.
4. Modified procedure. Following City of Bradford Metropolitan District Council v Pratt [2007] IRLR 192, paragraph 9 of Schedule 2 required sufficient detail to enable the employer to make a substantial response. Context might affect the degree of detail required, but could not remove the requirement. The court upheld the EAT’s alternative conclusion that the UNISON documents did not state the basis of the grievance sufficiently; the GMB cases were more doubtful. It was unnecessary to determine that issue because regulation 9 deemed compliance.
5. An estoppel by convention argument was not permitted for the first time on appeal because it raised factual issues that had not been considered by the Employment Tribunal.

• Court of Appeal (Civil Division): on 2 May 2012, dismissed Birmingham City Council’s appeal. Neutral citation [2012] EWCA Civ 585.
• Employment Appeal Tribunal: on 9 May 2011, held that the modified grievance procedure had not been complied with but that regulation 9 deemed compliance, while upholding the operative outcome of the Employment Tribunal.
• Employment Tribunal, Birmingham: on 5 November 2009, held that the grievances complied with the statutory grievance procedure, although none was a collective grievance under regulation 9.