Council loses bid to have equal pay claims dismissed for procedural failures

Birmingham City Council has lost a bid in the Court of Appeal to have 132 equal pay claims dismissed on the grounds of a failure to meet procedural requirements.

In Birmingham City Council v Akhtar & Ors [2012] EWCA Civ 585 the local authority argued that the claimants had failed to meet the requirements of (the now repealed) s. 32 of the Employment Act 2002 before they submitted claims under the Equal Pay Act 1970.

Section 32 was enacted to encourage the resolution of claims by employees without recourse to the Employment Tribunal. In the absence of compliance, the Employment Tribunal would have had no jurisdiction to consider the claims.

In this case the claimants/respondents argued that the section and schedule under it should be read and applied in the context of a dispute in which both unions and employers were well aware of the issues involved. They added that claims should not be defeated by technicalities.

Birmingham as defendant/appellant meanwhile argued that the statutory language of the section should not be strained or contorted.

The claimants won in both the Employment Tribunal and the Employment Appeal Tribunal, which found that the modified grievance procedure had not been complied with but ruled that there had been deemed compliance with the statutory procedures. The local authority took the case to the Court of Appeal.

Giving the judgment of the court, Lord Justice Pill also found in favour of the claimants.

On the issue of meeting the requirements set out in Regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, the judge upheld the EAT ruling.

Lord Justice Pill said he attached importance to two interrelated factors.

“First, I am in no doubt that the unions were in fact acting for each of the respondents and would be understood by the appellant to have been acting on their behalf throughout,” he said.

“The grievance procedure was undertaken in a context in which the unions were plainly acting ‘on behalf of’ the respondents when submitting documents to the appellant.”

The judge’s second point was that the relevant documents were sent in the context of a long-standing dispute about equal pay involving issues which had been “well ventilated” and which involved a large number of employees for whom the unions were acting.

“It is clear that a working relationship had developed between the appellant and the two unions and that the issues were well known on both sides,” he said.

“In that context, to treat the documents, notwithstanding the modified grievance procedure references, as failing to comply with regulation 9 of the 2004 Regulations would, in my judgment, be to take a more technical view of the procedure than the law requires or permits.”

In that context, Lord Justice Pill said, a letter signed by the union representative or, failing that, submitted to the appellant by the union representative, was sufficient writing setting out the grievance by the representative within the meaning of regulation 9(1)(a).

The judge also pointed out that the names of at least two employees had been specified by each union in writing, if the relevant documents were read together, and the grievance was raised on their behalf within the meaning of regulation 9(1)(b).

“Provided the requirements of regulation 9 are satisfied, as in my view they are, there need not be an intention to have acted under that regulation,” Lord Justice Pill said.

“Documents written with a view to following the modified grievance procedure may have the effect of attracting the operation of regulation 9. That possibility was not excluded by the letters written.”