Employment – Equal pay questionnaires – Statutory grievance ­procedures

DM Birch and 99 others v (1) Walsall Metropolitan Borough Council (2) Housing 21 Ltd (3) Sodexo Healthcare Services Ltd (4) Pinnacle Housing Ltd: EAT (Mrs Justice Cox): 10 September 2010

The appellant employees (the type A claimants) appealed against a decision of an employment judge that they could not pursue their equal pay claims because they had failed to comply with step 1 of the statutory grievance procedure contained in the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004. The respondent employers (W) cross-appealed against the employment judge’s decision that other employees (the type B claimants) had complied with step 1.

The type A claimants had sent a statement to W which was headed ‘Statutory Grievance and Questions Pursuant to Section 7B of the Equal Pay Act 1970’. The statement sent by the type B claimants was identical to the type A claimants’ statement save that it was headed ‘Statutory Grievance’. The employment judge found that the type A claimants’ statement had a dual purpose in that it was intended both to be a grievance and to invoke the questions procedure under section 7B of the 1970 act. She concluded that regulation 14 of the 2004 regulations did not allow for that possibility and that it operated to prevent the document from being a statutory grievance. As to the type B claimants’ statement, the employment judge held that the fact that the heading clearly identified it to be a statutory grievance, and did not identify it as being intended to ask questions for the purpose of section 7B, was sufficient to remove it from the ambit of regulation 14. The employees argued that both documents should be construed as classic ‘dual purpose’ documents, which both made complaints complying with the statutory grievance procedure and included some questions or requests for information relating to those complaints; regulation 14 should be construed literally so as to exclude only those questions which were outlawed by regulation 14 and to leave the statements which complied with the statutory grievance procedure intact as constituting valid statutory grievances.

Held: Recognising the dual purpose of documents such as those in the instant case and construing regulation 14 as excluding only the questions from constituting the step 1 grievance was the correct approach. It ensured that the draconian effect of denying a remedy to a woman seeking to assert her fundamental right to equal pay at work was avoided. It also accorded with the reality of the case. Both the type A and the type B documents were held otherwise to satisfy the grievance requirements, and the documents were initially regarded as satisfying those requirements by W. The complaints made were in fact far more detailed than the Court of Appeal held in Suffolk Mental Health Partnership NHS Trust v Hurst [2009] EWCA Civ 309, [2009] ICR 1011 was necessary to comply with the statutory grievance procedure. Both sides had been legally represented and understood exactly the issues being raised. No one had been misled. The grievance process should not become a trap for the unwary or unnecessarily technical or complicated. The questions or requests for information made in both documents were easily excised, leaving the remaining statements intact and thereby compliant with the statutory grievance procedure, Suffolk, Shergold v Fieldway Medical Centre [2006] ICR 304 EAT, Canary Wharf Management Ltd v Edebi [2006] ICR 719 EAT and Burns v Killgerm Group Ltd, unreported, 2 February [2009] EAT applied, and Holc-Gale v Makers UK Ltd [2006] ICR 462 EAT distinguished, as in that case the employee had not sent her questionnaire as a grievance.

Appeal allowed, cross-appeal dismissed.

Philip Engelman (instructed by Stefan Cross (Newcastle upon Tyne)) for the appellants; Timothy Kerr QC, Shabbir Lakha (instructed by in-house solicitor) for the respondents.