Employment Update May 2009: Equal pay procedure

14 May 2009

Employment Group

Initial grievance need not identify comparator

In Suffolk Mental Health Partnership NHS Trust v Hurst and others the Court of Appeal considered the case of claimants who, wanting to initiate an equal pay claim, had raised a written grievance which simply quoted the Equal Pay Act 1970 and said that they had been paid less than other employees for work which had been rated as equivalent. The employer replied, saying that comparison was very difficult, particularly as the claimants had not cited any individual comparators. As a result, the employer argued that it was not in a position to make any proposals. The claimants filed their claims with the tribunal and a preliminary issue arose as to whether they had filed valid grievances. The employer argued that the grievance letter had merely cited the statute. There was nothing in it to encourage dialogue between the parties and it was for the claimant, not the employer, to identify the comparator(s) who were essential if an equal pay claim was to succeed.

The Court of Appeal disagreed. Only minimum requirements are necessary when raising a statement of grievance.

Points to note –

  • This case was decided when the statutory grievance procedure was in force and it was mandatory for a claimant to raise a written grievance before filing a tribunal claim. The compulsory procedures have now been repealed. Since 6 April 2009, the Acas Code on disciplinary and grievance procedures applies. It is not compulsory but a successful claimant’s compensation may be reduced by as much as 25% if they have not raised a written grievance before filing their tribunal claim, so it is still very important to be able to identify a written grievance as such.

  • The Court of Appeal’s logic also still applies. A written grievance should identify the relevant statute (if any) under which a claim might be made but no elaborate statement is required.

  • In dealing with any discrimination claims, both employers and employees should remember that the statutory questionnaire procedure is available to flush out preliminary issues before any claim is filed. Potential claimants will use the answers to such questionnaires to help them decide whether or not to proceed with a claim. Employers who fail to answer such questionnaires, or provide only evasive answers, may have this held against them at any subsequent tribunal hearing. Please ask us if you need any further advice on this issue.