Alitalia Airport SpA v Akrif: UKEAT/546/07

EAT: Elias J (President): 17 March 2008

In September 2006 the appellant employers came to an agreement with a union representing their employees for the closure of a final salary pension scheme consequent on the payment of compensation to employees, and payments were made pursuant to the agreement on 27 October 2006. On 14 December 2006, after a majority of employees had transferred to a different union, that union presented a formal grievance to the employers on behalf of 22 employees, including seven of the claimants, claiming that factors of age and years of pension contributions used when calculating the payments pursuant to the agreement were discriminatory, contrary to the Employment Equality (Age) Regulations 2006, which came into force on 1 October 2006. Subsequently 20 pro-forma questionnaires, issued by the union under the 2006 Regulations, were sent to the employers, naming individual employees and contending that they had been discriminated against. A month later, on 25 January 2007, 21 claimants presented claims of discrimination on the ground of age to an employment tribunal. While seven claimants had been named in the original grievance, and three further claimants had been among those who had delivered questionnaires, the remainder were not identified until 31 January 2007, when a definitive list was given to the employers. An employment judge found that the grievance presented in December 2006 constituted a collective grievance to which regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, which included the requirement for 28 days between written grievance and complaint, did not apply to grievances governed by regulation 9, which was concerned with a procedure for collective grievances with no prescribed time scale; and that she had jurisdiction to consider all the claims. She also decided that, though the formula for determining the sums payable by way of compensation had been agreed prior to the 2006 Regulations coming into force, the claimants' cause of action arose when the payments were made.

Elias J (President) held:
(1) Regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provided an alternative way of complying with the standard grievance procedure specified in paragraph 6 of Schedule 2 to the Employment Act 2002, in that a claimant whose grievance was lodged through a regulation 9 procedure was deemed to have complied with paragraph 6 and could thereby satisfy section 32(3)(a) of the 2002 Act, though the obligation to satisfy the 28-day requirement in section 32(3)(b) remained. Regulation 9(1)(b) required a union representative presenting a collective grievance to identify in writing the employees on whose behalf he was raising the grievance, and who subsequently became claimants, within the statutory time frame as provided by section 32(3)(b). The seven claimants named in the grievance raised in December 2006 satisfied the requirements of section 32. As regards the three further claimants who had submitted questionnaires, while there was no express authorisation for the union officials to act as their agents, the questionnaires demonstrated that they shared the same grievance as that already lodged and that they were union members and a reasonable employer would anticipate that they had claims being dealt with through the collective process. The grievance already lodged by the union could, therefore, be treated as the relevant copy of their grievance. But the remaining 11 claimants, who had not been identified until 31 January 2007, had not complied with section 32 and could not pursue their claims.
(2) While the offer of the discriminatory terms could be seen as a detriment within the meaning of regulation 7(2)(d) of the Employment Equality (Age) Regulation 2006, the claimants’ complaint was a separate and distinct claim that the actual payments made in October 2006 were discriminatory benefits under regulation 7(2)(b). Although it might appear harsh for the employers, who had reached an agreement with the union when it was lawful to do so, to be subjected to claims in respect of the payments made consequent to that agreement, the claimants’ cause of action had accrued after the Regulations came into force.

The appeal was allowed in part.

Appearances: Thomas Linden QC (Wragge & Co LLP, Birmingham) for the employers; Louise Chudleigh (Thompsons) for the claimants.