The Scottish Court of Session in the case of Cannop & Others –v- The Highland Council has confirmed that where the employee’s Employment Tribunal claim follows on from a grievance previously communicated, there does need to be a necessary relationship between the grievance and the complaint pleaded in the ET1 Tribunal claim form, so that the grievance underlying the ET1 is essentially the same as the grievance earlier communicated. In respect equal pay claims, the Court declined to comment on the Employment Appeal Tribunal’s decision that the relevant grievance must refer to the comparators which are subsequently cited in the ET1.

What did the Court of Appeal decide?

In this case the Claimants brought equal pay claims in the Employment Tribunal against Highland Council. The Council argued that the Tribunal could not hear the claims because, by identifying comparators in their ET1 forms that had not been referred to in their grievance letters, they had failed to comply with paragraph 6 of Schedule 2 to the Employment Act 2002. This paragraph provides for the standard three step grievance procedure in which Step one requires the employee to set out the grievance in writing and send it to the employer. 

The Tribunal disagreed with the Council and permitted the claims to continue. The Council successfully appealed to the Employment Appeal Tribunal (“EAT”) which held that the comparative exercise was so fundamental to an equal pay claim that a comparator’s job or job type specified in the ET1 form must be materially or substantially the same as that specified in the grievance. The Claimants appealed to the Court of Session (the “Court”).

The Court confirmed that there was a need for a relationship between a grievance and any subsequent claim but this must not be regarded in an unduly technical or over-sophisticated way. The Court refused to comment on the EAT’s decision that the comparators named in the grievance should not be materially different to those set out in the ET1. This was because this was in fact a hypothetical question which, in the current appeal, the Court did not have to consider. The Court therefore merely concluded that the correlation to be looked for is whether the underlying claim presented to the Tribunal is essentially the same as the grievance earlier communicated. 

The Court also commented that the grievance document need not necessarily be read in isolation; there may have been earlier communications with the employer which provide a context within which the grievance may be interpreted. Furthermore, events following the communication of the grievance (for example, the giving of the "basis" prior to the Step 2 meeting and exchanges between the parties at that meeting) may illuminate the nature and scope of the grievance. There may also be some circumstances in which the employee (or those acting on his or her behalf) does not have access to the full facts; in such circumstances it may be sufficient to send the employer a grievance statement based on a suspicion or set of suspicions that certain facts exist.

The EAT had ordered that the case be remitted to the Tribunal to consider the correlation between the grievance and the Tribunal claim. The Court therefore changed the wording of the EAT Order remitting the case to Tribunal, so that instead of requiring the Tribunal to consider whether the comparators in the grievance were materially different from those referred to in the ET1, it should instead consider whether the grievance underlying the ET1 that was submitted to the Tribunal is essentially the same as the grievance earlier communicated.

What this decision means for employers

The Court was concerned that the statutory Dispute Resolution procedures should not be applied to render access for individuals to Tribunals in equal pay matters "impossible or excessively difficult."   In this case, the Court of Session was only able to give guidance on the broad approach to be taken as regards grievances and claims generally. Although the Court was able to confirm that the grievance underlying the ET1 in equal pay cases must be essentially the same as the grievance earlier communicated, it did not give guidance as to whether the grievance should refer to the comparators later identified in the ET1. That said, in view of the EAT’s comments on this point (which the Court said should be taken as “obiter” – persuasive but not binding on future Tribunals), an employer faced with an equal pay claim which identifies certain comparators not previously referred to in any underlying grievance, would certainly be able to use the EAT’s comments to support an argument that the Tribunal does not have the necessary jurisdiction. Decisions of the Scottish Courts are not binding on the Tribunals and Courts in England and Wales but their decisions are highly persuasive.

However, in April 2009, the statutory dispute procedures, including the statutory Grievance Procedure are due to be abolished and replaced by a less formal alternative. Consequently, there will no longer be any statutory requirement for a grievance to be raised before a Tribunal claim can be brought. Hence the issues raised in this case will only be relevant in respect of claims brought before April 2009.