Statutory Grievances and Equal Pay Claims

Thanks to Macroberts LLP, who acted for the Respondent, for preparing this summary.

The Court of Session has, today, largely upheld that EAT’s decision in Cannop & Others –v- The Highland Council on the correlation required between grievance and claim form in Equal Pay cases (see bulletin dated 10/1/08 for the EAT’s decision).

The Court confirmed that there does require to be a necessary relationship between the grievance and the claim form. Adopting wording used by Elias P in Canary Wharf, the Court stated that the underlying claim presented to the tribunal must be "essentially the same" as the grievance. They went on to add that other communications by the employee to the employer prior to the grievance may provide a context within which to interpret the grievance and that events subsequent to the grievance may also "illuminate the nature and scope of the grievance." The Court was mindful that the Dispute Resolution procedures should not be applied to render access for individuals to Tribunal in Equal Pay matters "impossible or excessively difficult."

The Court confirmed that the EAT were entitled to find the Employment Tribunal's approach flawed. However, as acknowledged by Counsel for the Highland Council, the exact wording of the EAT's order created some ambiguity as to its scope. The Court of Session therefore amended the wording of the EAT's order to make it clear which claimant's cases it applied to and substituted the test to be applied in comparing the grievance with the claim form with "essentially the same" as opposed to "not materially different."

The Court commented that the hypothetical debate pursued on behalf of the Claimants as to whether or not a grievance that stated "I have an Equal Pay grievance" (and nothing more) satisfied the requirements of para 6 Sch 2 of the Dispute Regulations was unhelpful in the context where none of the grievances in question were in fact presented in such stark terms. Accordingly, any comments made by the Employment Tribunal and the EAT in that respect should be regarded as obiter dicta.