Equal pay claims have been brought against Suffolk Mental Health Partnership NHS Trust (Suffolk), Mid-Staffordshire NHS Foundation Trust (Mid-Staffordshire) and Sandwell Metropolitan Borough (Sandwell). In all of them, the question was whether a valid grievance had been raised for the purpose of the statutory dispute resolution procedures.
In the Suffolk and Mid-Staffordshire cases, the claimants’ grievances made it clear that their complaints related to equal pay but did not identify specific comparators. The only reference to comparators was that they worked in predominantly male groups whose work was rated as equivalent under the Agenda for Change job evaluation. The tribunal rejected an argument that the grievances did not comply with the statutory requirements and considered that it was only required to satisfy itself that each complaint was essentially the same as that contained in the claimant’s grievance.
The position in Sandwell differed in that the grievance was drafted in very general terms and referred to unidentified male comparators. However the ET1 form in the subsequent claim identified comparators by reference to named posts and salary bands. This claim was struck out by the tribunal for failing to meet the minimum statutory requirements. Suffolk and Mid-Staffordshire and the claimants in Sandwell appealed to the EAT.
The EAT dismissed the appeals by Suffolk and Mid-Staffordshire and found in favour of the claimant in Sandwell. The EAT reasoned that it was enough for a claimant to indicate that they are pursuing an equal pay claim and it was not necessary to go on to identify specific comparators. It was inherent, in the EAT’s view, that if equal pay was claimed that it was also claimed that there was a man doing equal work receiving more pay than the complaining employee. That was enough. The EAT went on to reason that if details of comparators were not forthcoming from the claimant, any compensation awarded may be reduced by up to 50%.
- Although this case indicates that grievances involving equal pay need not specifically identify comparators, an earlier EAT decision said claimants must at least refer to comparators by job or job type. Therefore, the position in terms of what is the minimum requirement is unclear. What is beyond doubt is that if an employee identifies certain comparators in their grievance and then goes on to identify additional or entirely different comparators in their claim to the tribunal, they may not be able to rely on any comparators not identified in the grievance.
- The threat of reduced compensation for failing to produce details of comparators is unlikely to deter employees who are determined to conduct an equal pay fishing trip.
What you should do
- Keep an eye on the law for an appeal.
- In the meantime, try to draw out from the complainant some named comparators at the grievance stage (through correspondence and/or at a grievance meeting) to maximise the chance of resolving the dispute, preparing for any tribunal claim hearing, limiting any claim to the original comparators and claiming costs (if different comparators are subsequently identified).