Equal pay: ruling gives tribunals wider powers

Cannop and others v Highland Council

The Court of Session considered the extent to which claimants bringing equal pay claims have to establish a link between the content of the grievance and any subsequent claim set out in an ET1 form. The court also focused on whether the comparators named in the grievance and the claim had to be the same.

The court affirmed the Employment Appeal Tribunal’s (EAT) decision and confirmed there does need to be a relationship between the grievance and the ET1’s contents. However, the court refined the test set down by the EAT in determining whether a tribunal has jurisdiction to hear an equal pay complaint. The test to be applied is whether the information contained in the grievance and the ET1 is “essentially the same”.

Facts

The claimants presented equal pay claims against Highland Council. To be allowed to progress their claims, the claimants had to first raise grievances under the statutory dispute resolution procedures. The council argued that the tribunal did not have jurisdiction to hear certain claims because, in some cases, the comparators named in the ET1s had not been referred to in the grievances. The claimants had named different comparators in their grievances.

The tribunal held that it did have jurisdiction to hear the claims as it was clear that the grievance and the claim related to equal pay. It argued it was too harsh for employers to expect employees to identify comparators in their grievances. The council appealed.

The EAT allowed the council’s appeal, and stated that the comparator’s job outlined in the grievance must be materially the same as detailed in the ET1. The employee had to identify a comparator so an employer could appreciate that a relevant complaint was being made. The affected claimants appealed, arguing that any grievance only had to refer to equal pay there was no need to name comparators, although, in this case, the claimants had done so.

Decision

The court upheld the EAT’s decision, but varied the test to determine whether a tribunal has jurisdiction to hear an equal pay complaint. The court agreed with the EAT that the tribunal was incorrect to rule that any grievance could refer to equal pay (and nothing more) in order for a tribunal to have jurisdiction to hear the complaint. The link had to be stronger.

The court held that every claim presented had to be considered on its own facts but it was not appropriate to consider the concept of a hypothetical scenario when a grievance did not identify a comparator.

A formal comparative exercise has to occur in relation to the content of a grievance and any subsequent claim. The court ruled that a tribunal should consider whether the grievance that forms the basis of the claim is “essentially the same” as the complaint outlined in the ET1.

Implications

This case has confirmed there must be a clearly defined link between the content of a grievance and the information contained in any ET1. However, in varying the approach to be considered by the tribunal in determining whether it has jurisdiction to hear a complaint, the court has widened the scope of the tribunal to look at the grievance and the claim in more general teams, rather than focusing on the specifics of the comparators named at each part of the process. In following this approach, the tribunal has wider powers to determine issues of jurisdiction.

This case will continue to be relevant until the statutory dispute resolution procedures are repealed, which is due to take place in April 2009.

Claire Thomas, associate, Addleshaw Goddard

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