GRIEVANCE PROCEDURE

Holc-Gale v Makers UK Ltd

EAT: Judge Peter Clark, Ms K Bilgan and Mr J Mallender: 21 December 2005

The claimant served on her employers a standard question form in accordance with section 7B of the Equal Pay Act 1970, completing sections 1 and 2 of the form with a summary of her reasons for believing that she had not received equality of pay with named comparators, before asking a series of questions in connection with her claim. In their response to her subsequent employment tribunal claim for equal pay, the employers conceded that the claimant had raised a grievance as required by section 32(2) of the Employment Act 2002, but, at a later case management discussion before a tribunal chairman, contended that she had failed to provide them with a statement of grievance as required by paragraph 6 of Schedule 2 to the 2002 Act. The tribunal upheld the employer's submission and dismissed the claimant's claim on the ground that regulation 14 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 prevented the claimant from relying on her statements in the Equal Pay Act form as a statement of her grievance.

The claimant appealed.

The Employment Appeal Tribunal held:
(1) While the statements made by the claimant in sections 1 and 2 of the form served on her employer pursuant to section 7B of the Equal Pay Act 1970 came within the definition of "grievance" in regulation 2(1) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, the exclusion from that definition, by regulation 14, of questions to a respondent under section 7B was plainly directed to the whole of the question procedure, since the initial summary at section 1 and the identification of the comparators at section 2 of the form were a necessary foundation for, and were a part of, the specific questions which followed. Accordingly, the claimant had not complied with paragraph 6 of Schedule 2 to the Employment Act 2002 before presenting her equal pay claim, as required by section 32(2).
(2) Although the employer did not raise the issue of the claimant's failure to comply with the statutory grievance procedure, pursuant to section 32(6)(b) of the Employment Act 2002, in the response form, it was permissible for the employment tribunal to accept the point at the case management discussion, since it was an issue that went to the employment tribunal's jurisdiction to entertain the claim under section 32(2).
Per curiam. The question of the claimant's compliance with the statutory grievance procedure having been raised by the employer, it was then open to the claimant to restart the proceedings after putting in a written grievance; and that was the proper course for the claimant.

The appeal was dismissed.

Appearances: Lliam Pike, solicitor (PJH Law, Stamford), for the claimant; Christopher Over, solicitor (Over Taylor Biggs, Exeter), for the employers.