Equal pay grievances
January 2008
In this article...
Background
This case concerned the application of the statutory grievance procedures in relation to equal pay claims. In order to bring a complaint to an employment tribunal, an employee must set out their grievance in writing and send it to the employer.A fundamental principle underlying equal pay claims is that a woman’s claim needs to identify a male comparator, who she alleges is being paid more for undertaking the same, or equivalent, work.
The Employment Appeal Tribunal, in The Highland Council v TGWU considered how closely the job titles set out in an employee’s grievance had to match those in their claim to the Employment Tribunal (an ET1) and what an employee should do if they discover a new comparator after they have lodged an initial grievance.
The facts
The claimants’ grievances identified comparators’ job types which were different from those identified in their claims to the employment tribunal. In one example, the grievance referred to “road sweepers, refuse collectors, drivers and gardeners” but the ET1 referred to “other cleaning litter posts, Inverleith workshops, fleet maintenance, refuse collection schemes, Saughton Winder Gardens”. However, the job types in both documents were all rated in the local authority’s scheme of pay and conditions of service, know as “the Green Book” and referred to general complaints of pay inequality. The claimants contended that this was enough to satisfy the requirements of the standard grievance procedure and the Employment Tribunal agreed. The employer appealed.The decision
The Employment Appeal Tribunal upheld the appeal. It was held that the question of a comparator is so crucial to an equal pay claim, that an employee’s grievance must specify a comparator at least by reference to job or job type and this must match the ET1. A broad complaint of “equal pay” and / or differing comparators in the grievance and ET1 will not suffice.There does not need to be an absolute match between the comparator’s job title in the grievance document and the ET1; but there must be a close enough match to allow the employer to understand the complaint against them at the grievance stage.
It was noted that it may be difficult for employees to identify a precise comparator at such an early stage, and that more information regarding the correct comparator may emerge after the submission of a grievance. In those circumstances, the employee has three choices:
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if proceedings have not commenced, submit a further grievance with the new comparator and both grievances could be dealt with in one meeting; or | |
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if proceedings have been issued, apply to amend the claim; or | |
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if permission to amend is not granted, start again with a fresh grievance and fresh tribunal claim. |
What does it mean for me?
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This decision is likely to increase the administrative burden on employers dealing with equal pay complaints, as employees may submit multiple grievances or employment tribunal claims in order to ensure that they do not fall foul of the statutory grievance procedures. | |
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However, the requirement for employees to be specific about their complaint will assist employers in shaping their responses to complaints, and the higher burden on employees may deter speculative claims. | |
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We understand that this decision is going to be appealed and we will keep you updated on developments. |
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