Bradburn & 5 Ors v Strathclyde Joint Police Board Sub Nom Scottish Police Authority

Where the statutory dispute-resolution procedures were repealed, the transitional provisions preserved them only for an employee who met the stated transitional conditions. An employee who had neither presented a tribunal complaint by the prescribed date nor complied with the statutory grievance procedure was subject to the post-repeal law.

A collective grievance under the Employment Act 2002 (Dispute Resolution) Regulations 2004 required the employee concerned to be identified as a person on whose behalf the grievance was raised. A purposive and non-technical approach could not dispense with that essential requirement. A continuing series of alleged unlawful deductions could nevertheless permit a timely claim under section 23 of the Employment Rights Act 1996.

Six customer-services representatives claimed unpaid night-shift premium payments as unlawful deductions from wages. The alleged underpayments began before the repeal of the statutory dispute-resolution procedures on 5 April 2009, but the claims were presented in February 2011 as part of a continuing series of deductions.

The Employment Tribunal first held that the six claimants had not been named in a collective grievance and dismissed their claims for want of jurisdiction. Following a remission, it reached the contrary conclusion that they were parties to a Regulation 9 grievance. It was common ground before the Appeal Tribunal that none of the six had been named, identified or had signed the grievance.

The consolidated appeals concerned whether the transitional regime applied, whether the claimants were parties to a compliant collective grievance, and the costs consequences of a late appeal against the remission decision.

1. The consolidated appeals were allowed. The 2013 decision could not stand. Its conclusion that the claimants had not made a proper grievance did not entail that the repealed dispute-resolution regime still barred their claims. Under paragraph 3(2) of the Schedule to the Employment Act 2008 (Commencement No 1, Transitional Provisions and Savings) Order 2008, the old regime was preserved only where the employee had presented a complaint by the relevant date or had complied with paragraph 6 or 9 of Schedule 2 to the Employment Act 2002. On the Tribunal's original finding, neither condition was met.

2. The continuing failure to pay the claimed premium was capable of being the action forming the basis of the grievance. It was not necessary to treat each deduction in the series as a separate action for the transitional provision. The repeal therefore took effect and the post-2009 regime applied. Section 23 of the Employment Rights Act 1996 allowed a complaint concerning a series of deductions to be presented by reference to the last deduction in the series.

3. The 2014 decision also could not stand. A collective grievance must identify the employees on whose behalf it is raised. Although grievance procedures require a practical and purposive approach, an employee who was neither named nor otherwise identified cannot be treated merely because they knew of, or shared, colleagues' grievance as having made it. The Regulation 9 requirement was essential to ensure that both employer and employee knew who was raising the grievance.

4. The Appeal Tribunal declared that, subject to an unresolved argument concerning deductions before 5 April 2009, the Employment Tribunal had jurisdiction to consider the claims. That issue, and any distinct time issue affecting Ms Bradburn, were left to the Employment Tribunal.

5. The claimants had caused the September adjournment by raising their challenge to the 2014 decision late. The Tribunal exercised its discretion under Rule 34A to award the respondent its claimed expenses.

• Employment Appeal Tribunal: Allowed the consolidated appeals, set aside the Employment Tribunal's 2013 and 2014 jurisdictional conclusions, and declared that the Tribunal had jurisdiction subject to the identified unresolved issue.
• Employment Tribunal: In its 8 May 2013 judgment, dismissed the six claims for want of jurisdiction because the claimants had not been specified in the collective grievance.
• Employment Tribunal on remission: In its 2 May 2014 judgment, held that the collective grievance complied with Regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004.