Abendshine v Sunderland City Council

Under the statutory grievance procedure, an equal pay grievance need not identify a comparator. Naming particular comparators does not ordinarily restrict the later tribunal claim to those comparators.

The question is whether the grievance underlying the claim is essentially the same grievance as that previously communicated. This is a fact-sensitive question of fact and degree, assessed retrospectively and practically. The grievance and tribunal claim serve different functions, and the legislation should not be applied with undue technicality. A claim may be barred only where it introduces a genuinely distinct complaint or where the grievance procedure has been abused by misleading or deceptive conduct.

Approximately 250 equal pay claims were considered by the Newcastle Employment Tribunal. The tribunal struck out reliance on comparators who had not been identified in the claimants’ written grievances, considering itself bound by Dundee City Council v McDermott and Others.

The appeal concerned the interaction between the Equal Pay Act 1970, the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004. The central issue was whether naming comparators in a grievance prevented claimants from relying on different comparators in their tribunal claims under section 32 of the 2002 Act.

1. The appeal was allowed. The tribunal had erred in treating McDermott as binding after that decision had been overturned by the Inner House in Amery.

2. The statutory grievance requirements are minimal. Under the standard procedure, the employee must state the grievance in writing, but need not state its basis or identify a comparator. Additional information, including named comparators, is surplusage when determining the scope of the complaint.

3. The correct approach is that required by Cannop and supported by Hurst: the tribunal must ask whether the grievance underlying the claim is essentially the same grievance as that earlier communicated. This is a retrospective question of fact and degree. It should be assessed practically, having regard to the purpose of the procedure, which is to initiate discussion and encourage conciliation rather than to generate technical pleading disputes.

4. A claimant who identifies one comparator may later rely on another comparator where the later claim remains grounded in the same equal pay grievance. The employer’s possession of information about its pay structure, and the possibility that discussion will reveal further comparators, support that conclusion. A claim is not required to be a tracing-paper copy of the original grievance.

5. The claim may nevertheless be barred where it introduces a starkly different complaint, or where the purported grievance was so misleading or distracting as to amount to an abuse of the statutory procedure. The employer must ordinarily provide cogent evidence that the claim is genuinely distinct or abusive.

6. The distinction between the standard and modified grievance procedures remains material. The modified procedure requires the basis of the grievance to be set out in writing and may therefore require greater detail.

7. The Employment Tribunal’s decision was substituted with a finding that section 32(2) of the Employment Act 2002 did not bar claims based on additional comparators, subject to any case-specific evidence showing that the underlying grievance was essentially different or abusive.

• Employment Tribunal, Newcastle: in a judgment dated 21 April 2011, restricted the claimants’ reliance on comparators not identified in their grievances.
• Employment Appeal Tribunal: allowed the appeal and substituted a finding that section 32(2) of the Employment Act 2002 did not bar reliance on additional comparators, subject to case-specific exceptions.