APPEARANCES
| For the Appellant |
MR ANTONY WHITE QC &
MS CLAIRE DARWIN
(of Counsel)
Instructed by:
UNISON Employment Rights Unit
1 Mabledon Place
London
WC1H 8AJ |
| For the Respondent |
MR PHILIP ENGELMAN
(of Counsel)
Instructed by:
Messrs Park Woodfine Heald Mellows LLP Solicitors
1 Lurke Street
Bedford
MK 40 3TN |
SUMMARY
EQUAL PAY ACT
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Collective grievances and compliance with the statutory grievance procedures. Whether, in the context of public sector equal pay claims and TUPE transfers, the submission by a union representative of a written grievance to the County Council, copying in the NHS Trust as employer and forwarded to the Trust by the Council, not by the union representative, constitutes compliance with the requirement in regulation 9(1)(a) of the Dispute Resolution Regulations 2004 that the grievance be written to the employer. Appeal against ET's decision that it did not allowed, so that there is jurisdiction to determine these claims.
THE HONOURABLE MRS JUSTICE COX
- This is an appeal by the Claimants against a decision of the Bedford Employment Tribunal, dated 15 October 2009, that there was no jurisdiction to entertain the Claimants' claims against the Respondent Trust. This was on the basis that the Claimants' union representative had not complied with the statutory requirement to write to their employer setting out their grievance more than 28 days before the proceedings were issued.
- Once again the EAT is being asked to consider the meaning and effect of the statutory grievance procedures contained in the Employment Act 2002 (Dispute Resolution) Regulations 2004. In this case we are concerned with the effect of Regulation 9(1)(a), in the context of public sector equal pay claims and TUPE transfers.
- The issue for determination arises in circumstances where the Claimants' union representative had sent a written grievance to the First Respondent, (then Bedfordshire County Council), which was subsequently forwarded to the Trust, then the Second Respondent.
- The question is whether the fact that, in the event, the grievance was received by the Trust is sufficient to constitute compliance with the requirement that the grievance be written to them as the employer; and whether the Tribunal erred in concluding that it was not sufficient and that, consequently, the Tribunal could not hear the claims.
- Although these claims have a somewhat convoluted history, the point in this appeal is a short one. Apart from the evidence as to the sending of the grievance, there was no real factual dispute between the parties and the relevant facts can be shortly summarised as follows.
- The background to the claims was the nationwide transfer of adult mental health services from local authorities to the NHS, and the transfer of services for those with learning disabilities, previously carried out by the NHS, to local government. The Claimants were all previously employed by Bedfordshire County Council, the First Respondent to these proceedings. From April 2009 Bedford Borough Council took over the liabilities of the County Council and became the First Respondent in their place. The Claimants' claims against the Borough Council were found by the Tribunal to be out of time and there is no appeal against that finding. Accordingly, the Council is no longer a party to this litigation.
- In April 2005 the Claimants were all seconded by the Council to the Trust, and they currently remain in the Trust's employment. A secondment protocol was agreed between the Council and the Trust on the basis that mental health services would, from 1 April 2005, be carried out by the Trust, but that the contracts of employment for those involved in that work would remain with the Council.
- Each employee entered into a secondment agreement, which included a copy of that protocol and confirmed the integration of mental health service provision. It provided that recruitment and selection of seconded staff would continue to be undertaken by the Council, which would also deal with discipline and grievance issues relating to terms and conditions of employment. Grievances relating to the management of the service by the Trust would be dealt with by the Trust. Employees would be managed by a line manager of the Trust. If the agreement for transfer of mental health services to the Trust should end, the employees would return to their substantive posts with the Council and the Council remained responsible for recruitment, payment of salary, pension contributions and all matters ancillary to employment. There was little or no change of premises and, for all practical purposes, the work with individual service users continued in the same way throughout.
- At paragraph 22 of their Reasons, the Tribunal found as follows:
"The intention at that time was that once all the problems had been resolved there would be a TUPE transfer of the staff, who had been seconded, on 1 April 2006. There were then further discussions with the unions and staff about the various practical problems in connection with the transfer of employment and at the time everyone believed that the transfer of the staff who had been seconded, took place on 1 April 2006. However, on 1 April 2006 there was no practical change in the way the work was carried out. The same staff carried out the work under the same management of the Trust, as when it commenced running the mental health services from 1 April 2005. It was understood that the employer was now the Second Respondent, which had full responsibility for all staffing matters. However, the County Council continued to operate the payroll service and staff did not move to the Second Respondent's payroll until January 2007. The County Council continued to operate the pension provision. There was a gradual transfer of the HR files from the County Council to the Second Respondent after 1 April 2009."
Thus, contrary to the understanding of all parties at the time, the Tribunal found on the evidence that the Claimants' employment had in fact transferred to the Trust pursuant to the 1981 TUPE Regulations as from 1 April 2005 and not 1 April 2006.
- We were taken to the relevant secondment documents. We agree with Mr White QC, appearing for the Claimants, that they envisaged a high degree of cooperation and liaison between the Council and the Trust in relation to all employment matters, including the handling of grievances, in what was clearly a fluid situation.
- At the time these events were taking place, the County Council was going through the "single status" process of job evaluation. By April 2005 the Council was in a position to implement the changes required as a result of the job evaluation, but they did not do so due to financial constraints. During the discussions with trade unions between 2005 and 2006 the question of equal pay for the transferred staff was raised. It was accepted on all sides that the job evaluation process ought to be completed by the Council and the employees transferred on terms which reflected that.
- Due to the potential liability of the Trust to staff being transferred, in particular if an equal pay claim was brought, an indemnity agreement was entered into by the Council and the Trust, which made provision for the Council to indemnify the Trust in respect of claims which might arise as a result of the transfer of staff. This indemnity was entered into in June 2006.
- The trade unions had further discussions with the Council about the job evaluation changes required under the single status agreement in June or July 2006. Since this matter had not been resolved and the union then believed that the date of the transfer was 1 April 2006, it was decided that it would be necessary to send a written grievance by the end of September, and to issue proceedings, if necessary, by the end of December 2006. These dates reflected the initial, six-month period for a claim under the Equal Pay Act, if there was a transfer of employment on 1 April 2006, followed by the three months extension provided for by the Employment Act 2002.
- The grievance letter submitted by Unison on behalf of the Claimants was dated 29 September 2006. It was addressed, and sent, to Mr Satterthwaite, Head of Human Resources at the County Council. It was also clearly marked, at the end, with the following: "CC Steve Graham - Bedford PCT". Mr Graham was a Human Resources director at the Trust, and the grievance mistakenly linked him to a different organisation, namely Bedfordshire Primary Care Trust, which was not involved in any of these matters.
- The Unison Regional Officer, Ms Doogan-Turner, gave evidence that she believed that the grievance had also been emailed directly to the Trust. The Tribunal, although finding her to be an honest witness, did not accept on the evidence that it had in fact been emailed to the Trust. Further, they found that both the hard and the faxed copy of the grievance had been sent to the wrong organisation, namely the Bedfordshire PCT.
- The Claimants do not appeal against this finding. However, the Tribunal also found the following facts: (1), that on the previous day, that is 28 September, Ms Doogan-Turner had spoken to Mr Satterthwaite on the telephone to tell him that a grievance would be sent, and that she anticipated naming the Council and "the PCT" in both the grievance and any future legal action. That information was passed by Mr Satterthwaite to Mr Graham at the Trust; (2), a copy of the email to Mr Satterthwaite, including the attached grievance, was in fact forwarded by the Council to Mr Graham on 4 October 2006, and Mr Graham had therefore received the grievance.
- Save for this issue, the Tribunal found that the grievance letter of 29 September 2006 complied in all other respects with the requirements of the statutory procedure and was, therefore, a valid grievance for the purposes of jurisdiction. There is no cross-appeal from those findings and it is therefore unnecessary for us to refer to its terms. It clearly raised a complaint relating to equal pay.
- At the hearing below, the Tribunal permitted the Trust to amend its grounds of resistance to the claims in order to contend that it "did not receive a copy of the Claimants' grievance letter of 29 September 2006", and that "accordingly, there has been no submission of the same" to the Trust. The Trust's amended case was thus squarely based on non-receipt of the grievance.
- The Tribunal concluded, essentially, that Regulation 9(1)(a) required the Claimants' representative to send the grievance to the employer, and that it was not sufficient that the Trust had in fact received it indirectly, or found out about it from someone else.
- Their reasoning at paragraph 55 was as follows:
"For a claim to be sent it does not have to be received by the employer, but it must have been sent and sent by someone, who is either the Claimant or acting on behalf of that Claimant. We reject the submission by Mr Korn that the different wording in Regulation 9 means something different. Written to the employer must include that the union has sent the grievance to the employer, so that the employer can engage with the union over the grievance. Our finding of fact is that this was not done in this case. We do not accept that it is sufficient that at some stage by some other means the employer found out about it."
The Legal Framework
- Section 32 of the Employment Act 2002 was repealed by the Employment Act 2008 (Section 20, Schedule - Part 1) as from 6 April 2009. Few will have mourned its demise. It was however in force at the relevant time in this case and it therefore applies to the issues which we have to determine.
- It is common ground that, by virtue of Section 32, an employment tribunal is prevented from considering a complaint if a Claimant has not complied with the requirements of paragraphs 6 or 9 of Schedule 2, Part 2, to the 2002 Act, or if less than 28 days have passed between compliance with paragraph 6 or 9 and the presentation of the complaint. We note that, somewhat curiously, the employer has to take a Section 32 point in order for the Tribunal to find that they have no jurisdiction to determine the claim because of non-compliance with the statutory regime.
- Paragraph 6 of Schedule 2, Part 2 provides, so far as is relevant, as follows:
"PART 2
GRIEVANCE PROCEDURES
CHAPTER 1
STANDARD PROCEDURE
Step 1: statement of grievance
6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer.
Step 2: meeting
7 (1) The employer must invite the employee to attend a meeting to discuss the grievance."
Pausing there, the use of the words "or a copy of it" in Step 1 seem to us to envisage that the grievance need not be addressed to the person who receives it. The remainder of Step 2 makes provision as to the meeting referred to in paragraph 7(1), and Step 3 makes provision for appeals, which do not arise in the present case.
- Paragraph 9 of Schedule 2, Part 2 concerns the modified grievance procedure which applies if an employee has ceased to be employed in circumstances where the standard procedure had not been commenced before the last day of their employment and the parties have agreed that the modified grievance procedure should apply. That procedure is not relevant for the purposes of this appeal.
- The Employment Act 2002 was then supplemented by the Employment Act 2002 (Dispute Resolution) Regulations 2004, and the possibility of collective grievances arrived on the scene. It is common ground that regulations 7 to 10 of those regulations include deeming provisions whereby parties are treated as having complied with the statutory grievance procedure, even though the conditions specified in paragraph 6 of Schedule 2, Part 2 have not been met. Regulation 9 thus provides an alternative way of complying with paragraph 6 of Schedule 2, Part 2 and satisfying the requirements of Section 32(3)A of the 2002 Act (see Alitalia Airport Spa v Akhrif [2008] ICR 813 at paragraphs 15 and 34, subsequently approved by the Court of Appeal in Suffolk Mental Health NHS Trust v Hurst [2009] ICR 452 at paragraph 7).
- Regulation 9 of the 2004 Regulations provides, so far as is relevant:
"9 (1) Where either of the grievance procedures is the applicable statutory procedure, the parties shall be treated as having complied with the requirements of the procedure if a person who is an appropriate representative of the employee having the grievance has -
(a) written to the employer setting out the grievance; and
(b) specified in writing to the employer (whether in setting out the grievance or otherwise) the names of at least two employees, of whom one is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance."
- A grievance is defined at regulation 2(1) as follows:
"Grievance means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him."
By virtue of Section 40 of the 2002 Act, for the purposes of the statutory grievance procedure, the terms "employer" and "employee" have the same meanings as apply in the Employment Rights Act 1996. In this case, since there is no dispute that the grievance documents did correctly set out the grievance, the issue is the meaning to be given to the words "written to the employer" in Regulation 9(1)(a).
The Appeal
- The statutory grievance procedures have now been considered by the appellate courts on more occasions than they would wish. Nevertheless, the benefit of all that judicial focus is that the principles which should govern the approach of employment tribunals in this area are now clear, and they are not in dispute in this case.
- The procedure under regulation 9 is clearly different from that provided for in paragraph 6 of the standard procedure. In the Suffolk case the Court of Appeal rejected the submission that the absence from the regulation 9 procedure of a requirement to hold a meeting means that a collective grievance should be stated with "particularity".
- At paragraph 57f of his judgment, Pill LJ stated that the absence of a requirement for meetings was:
"no more than a recognition that, in such claims, unions can be expected to behave responsibly and not lightly take the further step of proceeding to the employment tribunal. They can be expected to enter into dialogue, even if pre-grievance statement negotiation either has not occurred or has been unsuccessful. This difference between individual and collective claims does not demonstrate a parliamentary intention to require detail."
- Having referred to the purpose of the regulations, that is discouraging the precipitate issue of proceedings and encouraging negotiation, conciliation and settlement, Pill LJ said this about the equal pay context at paragraph 57b:
"The continued failure in parts of the public sector, notwithstanding the 1970 Act, to pay women equally with men is well documented and publicised, and on the evidence I find it unsurprising that the Claimants in these cases had at least suspicions about their unfavourable treatment in this respect. I am prepared to take judicial notice of the public concern about failure fully to implement the provisions of the 1970 Act. Elias J referred at paragraph 80 of his Judgment in the present cases to the context of equal pay, that is of "widespread claims in local government". The Claimants were entitled to explore the position. The issue is best dealt with by negotiation between representatives of employees and employers, but progress in this field has been sufficiently slow to make attempts to seek redress through the Tribunal system on occasions legitimate."
- So far as the parties are aware, there is no authority on the particular requirement in regulation 9(1)(a) that the appropriate representative "has written to the employer setting out the grievance". However, we agree with Mr White that the requirements of the regulation 9 procedure should be interpreted consistently with the interpretation and approach established in those authorities concerned with the requirements of the standard procedure. Indeed Mr Engelman, appearing for the Trust, does not submit to the contrary.
- The regulation 9 procedure should not, therefore, be interpreted so as to lay even more traps for the unwary, or so as to create more obstacles for employees or their representatives than those in the standard procedures. That, as it seems to us, is of particular importance where the relevant grievance, and the claims which follow it, concern fundamental rights to equality of treatment in terms and conditions of employment, including equal remuneration.
- We therefore approach the issue in this case on the following basis: (a) the requirements of the statutory grievance procedures are to be construed in accordance with their purpose, namely to encourage cooperation and conciliation and to avoid the necessity of disputes having to be determined by tribunals (see Shergold v Fieldway Medical Centre [2006] ICR 304 and the judgments of the Court of Appeal in the Suffolk case); (b) the question whether there has been compliance with the procedures is not to be considered in an unduly technical way, and it is wrong to require grievances to be made in an unduly legalistic or technical manner (see Canary Wharf Management Ltd v Edebi [2006] ICR 719); and (c) in considering whether there has been compliance with the procedures, the focus is on substance not technicality. The threshold to be crossed by employees should not be set high or beset by legalistic obstacles (see Francis v Kennedy Scott Ltd [2007] 2 All ER (D) 162 June – UKEAT/0204/07/DM).
- The EAT has now considered in a number of cases the requirement in the standard procedure that "the employee must set out the grievance in writing and send the statement or a copy of it to the employer"(see Canary Wharf v Edebi, Francis v Kennedy Scott Ltd, Bottomley & Others v Wakefield District Housing [2008] 1 All ER (D) 46 (May) – UKEAT/0550/07/JOJ, and Warner Ltd v Aspland [2006] IRLR 87). It is clear from these cases that there is considerable flexibility about the form of the grievance and that there is no necessity for the grievance to be directed to or addressed to the employer. In Bottomley, a grievance letter addressed incorrectly to the Claimant's former employer, sent directly to that former employer and only forwarded to the actual employer later on the same day was held to be compliant with the standard procedure.
- Of particular relevance in this case, as it seems to us, is the EAT's decision in Francis, a decision of the judge who presides in the present appeal, sitting alone, in a case where the employee had presented his grievance orally at a meeting with his line manager, who had noted it down. Holding that that was sufficient to comply with the procedure and that an employee did not have to physically write or send the grievance himself, paragraph 52 of the judgment reads as follows:
"There is, on the authorities, no necessity for the Claimant personally to put the grievance in writing and send it to his employer. It must, of course, clearly be his grievance, his employer must receive it and it must relate intelligibly to his subsequent Tribunal claim. In the present case if, at the end of the meeting with Ms Fishley, the Claimant had asked to borrow the notes and had then either rewritten them in the first person in his own hand or had simply added at the end the words: "This is my grievance" and handed them back to her, there would be compliance with Step 1, and Mr Galbraith-Marten fairly accepted this to be the case. The absence of such a step cannot be regarded in my judgment as invalidating compliance with Step 1 on the facts of this case. Such a conclusion seems to me to lead to the unduly legalistic and technical approach which the EAT has deliberately and wisely sought to avoid in interpreting these provisions."
The important point, in the context of the present case, is that the employers had actually received the employee's grievance, even though the employee had not "sent" it to them.
- Mr Engelman points to the particular facts of the Francis case, which he suggests explained the outcome, on a proper application of the relevant principles. Mr Francis described himself as dyslexic and the employer had himself suggested that his grievance should be recorded in the way that occurred. In our view however the important point is the general approach adopted towards the statutory provisions, both in that case and in the case of Bottomley. In any event, the facts in the Francis case might be said to be less compliant with a requirement that the grievance be "sent to" the employer, and we do not think that seeking to distinguish the case on its facts assists Mr Engelman in this appeal.
- In seeking to uphold the Tribunal's decision in this case, Mr Engelman submits essentially that this case is a very simple one. Primarily questions of compliance with the statutory regime are questions of fact, and a tribunal's decision will invariably be fact sensitive. The requirement in regulation 9(1)(a) necessarily imports the obligation, upon the employee's representative, to send the written grievance directly to the employer.
- He took us to various passages in those authorities to which we have already referred, and also to Highland Council v Transport & General Workers Union [2008] IRLR 272, in order to emphasise that the grievance must be communicated to the employer by the representative, and that communication is an essential component of the requirement to write to the employer.
- He submits that the Tribunal were therefore entitled to arrive at the conclusion they did in this case, on the facts they had found. Further, even if you approach their decision by considering the underlying purpose of the statutory procedures, namely to enable discussions and negotiations to take place, the employer has to be sent the grievance by the representative in order for that process to begin, and that was not done in this case.
- We have considered these submissions carefully, but we reject them. We do so for the following reasons. Firstly, in importing into regulation 9 the paragraph 6 standard procedure requirement that a grievance be sent to the employer, we consider that this Tribunal were in error. There is no such requirement in regulation 9. The requirement that a grievance is "written to the employer" does not amount to a requirement that it is "sent to the employer", so long as he receives what has been written. On the facts of this case the grievance was, plainly, written to the employer.
- Secondly, under the standard procedure it is sufficient if the employer receives the grievance (see Francis). The focus is not on the act of sending, other than as a means of achieving receipt. The same approach, in our judgment, should apply here. The members of this Tribunal were therefore wrong to require that a regulation 9 grievance should be sent to the employer. There is no warrant for a higher hurdle to be set in the case of collective grievances.
- Mr White submits that the Tribunal ought in any event to have concluded that the Respondent's amended case, that they did not receive a copy of the grievance, had not been made out. Plainly the Tribunal found that the Trust did receive the grievance when it was forwarded by the Council to Mr Graham, one of its intended recipients, on 4 October 2006. Mr Engelman submits that the amended case reflected the Trust's submission that the grievance had not been received because it had not been sent to them by the Claimants' representative. The words "dancing on the head of a pin" come to mind. Such an unattractive distinction serves only to emphasise the unhelpful and arbitrary results which flow from an unduly technical approach to these provisions.
- Focusing on substance rather than technicality, as required by the authorities, we therefore conclude that the Tribunal erred in requiring that the regulation 9 grievance should have been sent to the Trust, in circumstances where they had found that the relevant person at the Trust was named and copied into the written grievance; where that person was informed by the Council on the previous day that the grievance was on its way; where there was, in any event, considerable liaison between the Council and the Trust in relation to employees and to employment and grievance issues at this time; and where the Tribunal found as a fact that the employer did receive the grievance.
- The fact that the grievance letter mistakenly linked Mr Graham to Bedford PCT does not mean that the letter was not written to him. Once the Trust had received it, in our judgment, it had plainly been communicated to the employer by the employee's representative via, as Mr White expressed it, an unexpected method of transmission. To hold otherwise, in our view, would result in an absurd outcome in this case, and one which we are entirely satisfied could not have been Parliament's intention.
- We observe finally that, on the evidence, the Trust were clearly aware of these claims by June 2006 at the latest, when they entered into an indemnity agreement with the Council which specifically included any claims arising from the single status job evaluation process. What happened in this case did not therefore prejudice the Trust in any way or undermine the underlying purpose of the statutory procedures. There was ample opportunity for the Trust to respond to and seek to resolve the grievance before the claims were presented to the Tribunal in December 2006.
- For all those reasons we therefore allow this appeal. The Employment Tribunal has jurisdiction to hear and determine these claims.
