Appeal No. UKEATS/0048/07/MT

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the tribunal
	On 3 June 2008

Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

THE HIGHLAND COUNCIL	APPELLANT

1)  TGWU & UNISON	RESPONDENT
2)  GMB
3)  ALL INDIVIDUAL CLAIMANTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR I TRUSCOTT
(One of Her Majesty’s Counsel)
Instructed by:
Messrs MacRoberts Solicitors
152 Bath Street
Glasgow
G2 4TB

For the First Respondent	MR S GORTON
(of Counsel)
Instructed by:
Messrs Thompsons Solicitors
Berkeley House
285 Bath Street
Glasgow
G2 4HQ

For the Stevan Cross Respondents	Mr P Clark
(Solicitor) 

SUMMARY

EQUAL PAY ACT:  Equal value

Equal Pay claims. Whether letters sent to local authority employers by unions prior to coming into force of the statutory grievance procedures met the requirements of regulation 18 of the Employment Act 2002 (Dispute Resolution) Regulations 2004.  If not, whether letters written after the coming into force of the procedures met the requirements of regulation 9 or of paragraph 6 of Schedule 2 to the 2002 Act. Circumstances in which Employment Tribunal’s finding that they did so reversed on appeal by the EAT. 

THE HONOURABLE LADY SMITH

INTRODUCTION 
1.	This case concerns, once more, equal pay claims against The Highland Council and grievance procedure issues. The Highland Council were respondents at a pre-hearing review before the Employment Tribunal sitting at Aberdeen, Chairman Miss FCC Carmichael.  Many claimants have an interest in the proceedings.  For present purposes, it is sufficient to note that the issue that arose affected claimants who are said to have been members of the TGWU (now Unite), Unison and the GMB. There was representation before the Tribunal on behalf of the respondents and on behalf of those unions. There was also representation for a group referred to as the “Stefan Cross Claimants”’ being claimants who were members of the specified unions but represented in the proceedings by Stefan Cross, solicitor, some of whom may have been union members at the relevant time.

2.	I will continue referring to parties as claimants and respondents.  Before this Tribunal, the respondents were represented by Mr Truscott QC, Unite and Unison by Mr Gorton, Barrister, and the Stefan Cross Claimants by Mr Clark.  Mr Moretto, Barrister, had submitted a skeleton argument on behalf of the GMB, which was adopted by Mr Gorton and Mr Clark (who also adopted Mr Gorton’s submissions). Mr Moretto was unable to attend due to unforeseen circumstances.

BACKGROUND
3.	In 1999, local authorities and trade unions in Scotland had entered into the Scottish Joint Council for Local Government Employees National Agreement of Pay and Conditions of Service (“the Red Book”). It included provision for the grading structures for former manual workers and APT & C staff to be reconsidered in the light of matters which included a concern that an irregularity in pay structures may have evolved that failed to achieve equal pay as required by statute. To that end the Red Book provided for job evaluations to be carried out.  Local authorities, including the respondents, repeatedly missed deadlines for the carrying out of those evaluations.

4.	Much of the relevant background is contained in correspondence and the submissions made to the Tribunal turned on its interpretation and the inferences that could be drawn from it. I propose, accordingly, to set it out in full.

5.	By letter dated 21 June 2004, Mr Campbell of the TGWU wrote to the respondents’ chief executive in the following terms:
“COSLA Red Book Single Status Pay & Conditions Review – Equal Pay/Sex Discrimination Issues
The Review has now been on going for over 4 years and although COSLA Circular SJC/13 expected all Councils to complete the job evaluation exercise no later than 31 March 2004, your Council has not done so.
We have not agreed with your Council to extend the completion date.
We have been more than fair and reasonable in allowing the process to take so long given that the original date to complete the exercise was April 2002 at the latest.
The inequalities that our members have suffered for many years and still do suffer cannot be allowed to continue.
The Council must recognise that our members may opt to protect their legal rights in submitting employment tribunal claims in order to secure equal pay and to recover back-dated payments plus compensation for injury to feelings.
We clearly have an obligation to our members to secure equality at work by way of collective bargaining.
You are aware we have always been and still are available to enter into negotiations with our Council in line with the COSLA (Red Book) National Agreement.
We are still determined to resolve these inequalities by way of a collective agreement in line with our Union’s own rule book objective on the promotion of equality for all and also ensuring that equal pay and sex discrimination legislation is adhered to by your Council.
It is important that you understand that in securing justice for all those who have been subject to direct/ indirect sex discrimination and unequal pay we are not seeking local negotiations around the following matters –
	Immediate pay and conditions parity
	full 6 year backdated payment including interest
	compensation for injury to feelings

The T&G will of course enter into collective bargaining with your Council to discuss the above matters so that a Collective Agreement can be reached.
We look forward to hearing from you.” 

6.	By letters dated 23 June 2004, the three secretaries of the trade union side of the Scottish Joint Council wrote jointly to the chief executives of all the Scottish local authorities including the Respondents. It was in the following terms:
“The purpose of this letter is to advise you of the views of the Trade Union Side Secretaries regarding the difficulties in addressing the question of equal pay in Scottish Local Authorities ……
The position of the Trade Union Side Secretaries is as follows:
The Employer’s Side have not fulfilled their obligation to introduce job evaluation by 31 March 2004, as set out in Circular SJC/13.
The local authorities are failing in their legislative duty to ensure equal pay in Scottish local government.
The consequence of not introducing job evaluation leaves local authorities vulnerable to equal pay claims.
The trade unions have a duty to ensure that they are exercising due skill and care on behalf of their members and are themselves not party to any unlawful act.
To safeguard the interests of our members we shall take any necessary steps which may include the pursuit of equal pay claims …..
We are in no doubt that Councils will understand the severity of the problem caused by the failure to achieve equal pay in local government in Scotland by means of the agreed job evaluation scheme.
We would therefore expect you to discuss urgently the contents of this letter with the leader of your council in advance of the forthcoming full Convention and leaders meetings.”

7.	By letter dated 13 August 2004, Mr McLuckie, Senior Organiser of the GMB, wrote to all the Respondents in the following terms:
“Dear Mr Patterson
JOB EVALUATION, EQUAL PAY, AND THE SINGLE STATUS AGREEMENT
You will previously have received correspondence from the Trade Union Joint Secretaries regarding Equal Pay in Scottish Local Authorities.
Since sending that letter GMB Scotland have taken a decision to try and conclude all matters relating to Equal Pay in Local Government as soon as is reasonably practicable.
GMB Scotland see the full implementation of the Job Evaluation Scheme contained within the Single Status Agreement as the best means of dealing with Equal Pay issues for the present and future position.
You will no doubt be aware of the activities of some ‘No Win/No Fee Solicitors’ in this field, and a more than passing interest by the Equal Opportunities Commission on the issue of Equal Pay in Local Government.
It is GMB Scotland’s view that we should negotiate with your Authority a satisfactory conclusion on Job Evaluation and as a consequence deal with the issue not only of Equal Pay, but of maintaining existing Terms and Conditions of Employment and keeping Services in the Public Sector.
We have had within the Single Status Agreement a date for implementation of Job Evaluation.  This is some 5 years after the introduction of the Single Status Agreement and it is GMB Scotland’s view that we cannot allow this situation to continue indefinitely.
There is an obligation on our part to exercise due diligence on behalf of our members and in terms of Equal Pay in Local Government we now need to see a definite move towards eradicating any current pay inequalities.
It is for this reason and our desire to negotiate on this matter that we would appreciate it if your Authority could forward a date by which you will implement a Job Evaluation Scheme.
Your reply will obviously influence our actions in terms of taking this matter forward.  We would say however if there is no date for implementation for a considerable period of time then GMB Scotland would have no alternative, but to look at pursuing Equal Pay claims.
We do hope this is not necessary and that we can resolve this issue through negotiations.”

8.	By letter dated 27 August 2004, the three secretaries wrote again to the local authorities, including the respondents. The letter was in the following terms:
“I refer to our letter dated 23rd June 2004, regarding the non-implementation of an agreed job evaluation scheme and outlining the views of the trade union side. To date we are disappointed in not having received a response. Therefore the Trade Union Side of the Scottish Joint Council have instructed us to write to you once more.
As previously stated, the Trade Union Side’s view is that immediate measures must be taken to address the issue of equal pay by Scottish Local Authorities.
One of the measures is the implementation of a job evaluation scheme that has been subject to scrutiny by the Equal Opportunities Commission.
The Trades Union Side today agreed a strategy to ensure that pay inequalities in Scottish local authorities are removed….You must be aware that the trade unions’ strategy also includes preparing to litigate where we consider it to be necessary.
The Trade Union Side is of the view that Councils have not provided the trade unions with meaningful information or with a timescale for implementation of an agreed job evaluation exercise that is acceptable to our members.  If you wish to refute this view you must provide us with evidence to satisfy us of your commitment by …3 September 2004
Your response should be sent to ……..Your Council’s response will be considered and will influence what approach the trade unions will take.”  

9.	The respondents replied by letter dated 17 September assuring the unions that they were committed to implementing the job evaluation scheme, with a target date of 1 April 2005, a date which was later than the original target date.  They did not, however, implement the scheme by that date. 

10.	The Employment Act 2002 (Dispute Resolution) Regulations 2004 (“the 2004 regulations”) came into force on 1 October 2004.  

11.	By letter dated 17 August 2005, Mr Crabtree, GMB organiser wrote to the respondents in the following terms:
“GMB Scotland wish to register a Collective Grievance for our women members employed in the above named authority.
The grievance is that our members listed below are not paid equal pay for work of equal value with their male colleagues.
The members that we believe are suffering inequality in pay are as follows:”

12.	There then followed two columns of lists of a total of fifteen job categories ranging from cleaners to leisure and locker room attendants. The letter continued:
“When compared to the levels of remuneration (including Bonus Payments) of predominantly male groups of employees such as:”

and a list of seven job categories was then set out. The last three paragraphs of the letter were:
“This list is by no means exhaustive. We believe that there is a pay gap that is a result of their gender.
We would ask that their Contract is amended to remove this pay inequality and that retrospective payments be made to the effective groups.
I look forward to hearing from you on this matter.” 

Employees’ names were not specified in the letter.

13.	By letter of 10 October 2005, Mr Campbell, Regional Organiser of the TGWU, wrote to the respondents as follows:
“Collective Grievance. Failure to provide Equal Pay for Work of Equal Value, Sex Discrimination and breach of the part- time worker (prevention of less favourable treatment) Regulations
The TGWU has previously written to your Council on a number of occasions on the original collective grievance affecting our members relating to inequalities and the breach of various aspects of equal pay and sex discrimination laws.
In light of the history behind the establishment of the Red Book Agreement in 1999, subsequent ‘discussions’ at local level where our Representatives intimate grievances on pay inequalities and sex discrimination and further T&G correspondence from June 2004, March and July 2005 your Council can not claim no awareness of our members grievances as outlined above
For the avoidance of any doubt we reiterate that our members employed by you in the following categories have a collective grievance in respect of breaches of the Equal Pay Act, Sex Discrimination Act and the Part-time Worker (prevention of less favourable treatment) Regulations…
Cleaners and Cleaner Chargehand/Supervisors, Catering Assistants, Coffee Bar Assistants, Assistant Cooks/Cooks, Cook Supervisors, Care Assistants, Home Carers, Domestic Assistants, Domestic Support Carers, Personal Carers, Nursery Nurses, Nursery Assistants, Crèche Workers, Playgroup Workers, Classroom Assistants, Lunchtime/Playground Auxiliaries, Children’s’ Supervisor, Education and Social Work Escorts, Special Educational Needs Auxiliaries, Leisure Attendants, Basket/Locker Attendants, Clerical Assistants, Help Desk Assistants, WP Operators, Customer Service Assistants, Receptionists, Administrative Staff,  School Administrators.
The female staff in the above categories believe they suffer substantial loss of pay when compared to the following categories of employees who are predominately male and have bonus payments and/or pay supplement schemes applied to them ….
Road Workers, Gardeners, Greenkeepers, Gravediggers, Grounds Services Labourers, Litter Pickers, Street Sweeping Orderly/Labourer, Refuse Collection Drivers and Loaders, School Janitors, Groundsmen/Janitors, Craft Workers & Labourers.
Our female members believe that the Council has directly discriminated against them on the grounds of their sex by denying access to these bonus schemes and/or pay supplement schemes and by paying them less than their male comparators in breach of equal pay legislation.
They seek compensation for injury to feelings for being victims of sex discrimination.
In addition to the sex discrimination collective grievance they also believe that the Council has failed to provide them with equal pay for work of equal value in comparison to all the terms and conditions of services of the predominately male groups of Council workers as listed above.
They believe that they earn at least 33% less than their male comparators.
We seek retrospective compensation for our members plus interest for the years of failing to provide them with equal pay for work of equal value and we seek compensation for injury to feelings for the sex discrimination they have suffered.
Finally that we wish you to note that the few male staff who fall into the category of staff listed in the collective grievance are equally aggrieved as their female colleagues and wish you to know they have a collective grievance that the terms of the Part time Workers (Prevention of Less Favourable Treatment) Regulations have been breached in respect of them and their female part-time colleagues.
They also wish it to be noted that if their female colleagues collective grievance is upheld then it would fall that the terms of the collective grievance in respect of a breach of Equal Pay and Sex Discrimination Laws resolution would equally apply to them as well”.

The Issue 
14.	The Tribunal required to determine a single issue, namely that of whether or not it had jurisdiction to entertain the claimants’ claims. The question of jurisdiction arose because of the terms of section 32 of the Employment Act 2002 (“the 2002 Act”) and it required the Tribunal to consider whether or not the statutory grievance procedures applied and if so, whether they had been complied with. 

15.	In so doing, the Tribunal required to consider:
(i)	whether any of the above letters that were written to the respondents prior to 1 October 2004 either alone or together contained terms which satisfied the requirements of regulation 18 of the 2004 regulations? If they did, then the claimants were not obliged to comply with the requirements of the statutory grievance procedures set out in Schedule 2 to the 2002 Act.

(ii) if they did not, whether the above letters that were written to the respondents in 2005 satisfied the requirements of regulation 9 of the 2004 regulations?  If so, then the claimants would be deemed to have complied with the statutory grievance procedures.

(iii) if neither (i) nor (ii) applied, whether the above letters that were written to the respondents in 2005 satisfied the requirements of the statutory grievance procedure? 

The Relevant Law
16.	Much has been said about the statutory grievance procedures that is negative.  Much as it would make a pleasant change to encounter a set of circumstances that gives rise to that elusive creature, namely, positive comment about them, this is not such an occasion. That is though, beside the point. As I said in the case of Highland Council v TGWU & ors [2008[ IRLR 272:
“ …for the time being they remain in place as a matter of law, with equal pay claims having been brought expressly within their ambit, and they have to be observed.”  (para 29).

17.	The starting point is section 32 of the 2002 Act which provides:
“32.
(1)	This section applies to the jurisdictions listed in Schedule 4.
(2)	An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if- 
	(a)	it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and 
	(b)	the requirement has not been complied with.” 

18.	Equal pay claims feature in the Schedule 4 list.  Paragraph 6 of Schedule 2 of the 2002 Act sets out the first step of the “Standard Procedure” and provides:
“6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer.”  

A “modified procedure” is also provided for which is not relevant for the purposes of these complaints.

19.	“Grievance” is defined in regulation 2 of the 2004 regulations:
“grievance means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him."

20.	Regulation 9(1) and (2)(a) is also relevant.  It allows for circumstances in which parties will be treated as having complied with the statutory grievance procedure even although the steps set out in paragraph 6 of Schedule 2 to the 2002 Act have not been gone through, and provides:
“9
(1)	Where either of the grievance procedures is the applicable statutory procedure , the parties shall be treated as having complied with the requirements of the procedure if a person who is an appropriate representative of the employee having the grievance has –
	(a)	written to the employer setting out the grievance; and 
	(b)	specified in writing to the employer (whether in setting out the grievance or otherwise) the names of at least two employees, of whom one is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance.
(2)	For the purposes of paragraph (1), a person is an appropriate representative if, at the time he writes to the employer setting out the grievance, he is –
	(a)	an official of an independent trade union recognised by the employer for the purposes of collective bargaining in respect of a description of employees that includes the employee having the grievance.”

21.	Accordingly, if the regulation 9 circumstances apply, a claimant is permitted to present a claim to an employment tribunal despite the fact that a formal grievance has not in fact been raised in the manner set out in paragraph 6.  The force of section 32(2) and paragraph 6 remains but there is, in effect, deemed compliance with paragraph 6 in such circumstances, which in turn means that the requirements of section 32(2) have been met.  

22.	Regulation 18 is also important for the present claims. It is the regulation which contains the transitional provisions, it appearing to have been recognised that at the time that the regulations came into force, it was possible that there would be ongoing complaints, the source of which predated 1 October 2004:
“18
These Regulations shall apply –
	(a)	in relation to dismissal and relevant disciplinary action, where the employer first contemplates dismissing or taking such action against the employee after these Regulations come into force; and 
	(b)	in relation to grievances, where the action about which the employee complains occurs or continues to occur after these Regulations come into force,
but shall not apply in relation to a grievance where the action continues after these Regulations come into force if the employee has raised a grievance about the action with the employer before they come into force.” 

23.	As was common ground between parties, no previous authorities are directly in point as regards the regulation 9 and 18 issues that arise in this case.  Some reliance was, however, placed by the claimants on certain obiter comments made by Elias P in Alitalia v Akrif & others UKEAT/0546/07/RN.  One of the issues in that case concerned whether a letter constituted a collective grievance so as to benefit from the deeming provisions of  regulation 9 for claimants whose names had not been identified within it but whose names had been intimated after the tribunal claims had been lodged. At paragraph 42, Elias P said:
“I would not rule out the possibility that the names could be identified indirectly, such as where the grievance is raised on behalf of a defined group of individuals readily identifiable to the employer, such as all the GMB members in the paint shop. I heard no argument about that.” 

24.	I confess that I have difficulty with the proposition that where a section of a statute expressly states that, to qualify for the benefit of its provisions, a person requires to have “specified in writing ….at least two names” to his employer, he can achieve compliance without putting those names in writing and giving the document that contains that written expression to his employer.  Had the terms used been that the requirement was to “identify” the employees in writing or to “indicate” the employees in writing, then I can see that there would be room for the approach suggested in the above obiter remarks but not where the statutory requirement is for the specification of “names”.   Had the President heard argument on the matter, he may, of course, have concluded differently. 

25.	As regards the question of whether or not the statutory grievance procedure set out in paragraph 6 of Schedule 2 to the 2002 Act was complied with, parties appeared to agree that the law is conveniently summarised in the Highland Council case to which I have already referred (at paragraph 10). 

26.	I turn to the matter of the role played by the trade unions.  It is trite that a collective agreement is not normally enforceable in law albeit that its terms may become incorporated into employees’ individual contracts of employment.  There is nothing in the circumstances of the present case to suggest that the normal rule does not apply and it was not argued that it did not. Collective bargaining is in the same category.  Its object is to seek to achieve a collective agreement, not to seek to conclude contracts as agent for its members or any of them.  It follows that it is not to be presumed that, in the course of such bargaining, trade unions are acting as agents for their members.  As Elias P commented, with regard to certain submissions made by counsel in the Alitalia case, at paragraph 51:
“…….He correctly points out that the union representatives do not act as agents of their members, save where there is clear evidence that they have been specifically authorised to do so.”

27.	Similarly, in the case of Holland v London Society of Compositors and Anor 1924 Times LR 440 , where a provincial trade union had agreed with a London union that if a member of the former was offered a job in London, he would be entitled to membership of the latter, Mr Justice Lush is reported as having said that:
“He could not accept the contention that the contract was made for any individual or for his behoof and benefit, but it was made by the trade unions concerned for their own purposes.” 

and in a case before the Privy Council, Young v Canadian Northern Railway Company [1931] AC 83, Lord Russell, in referring to a “Wage Agreement” that had been entered into between the appellant’s trade union and the Canadian Railway War Board, said:
“ ….it does not appear to their Lordships to be a document adapted for conversion into or incorporation with a service agreement, so as to entitle master and servant to enforce inter se the terms of thereof . It consists of some 188 “rules”, which the railway companies contract with Division No. 4 to observe. It appears to their Lordships to be intended merely to operate as an agreement between a body of employers and a labour organisation by which the employers undertake that as regards their workmen, certain rules beneficial to the workmen shall be observed. By itself it constitutes no contract between any individual employee and the company which employs him. If an employer refused to observe the rules, the effective sequel would be, not an action by any employee, not even an action by Division no.4 against the employer for specific performance or damages, but the calling of a strike until the grievance was remedied.” 

28.	It follows that, before a trade union member can rely on the actings of a trade union in a collective bargaining exercise as being actings carried out on his behalf, he requires to show that the union was specifically authorised so to act.  It cannot be presumed that it is or was doing so.  The case of Chappell & Ors v The Times Newspapers Ltd & ors [1975] IRLR 90 is not, contrary to what seemed to be suggested by the claimants’ submissions, authority for that proposition.  That case concerned an application by six employees for interim injunction to prevent their employers terminating their contracts of employment in the context of an industrial dispute.  Their union had been threatening to take industrial action.  The plaintiffs asserted that they should be regarded as individuals, separate from their union but the respondents asserted that the facts and circumstances showed that, in threatening to take industrial action, the union was acting as their agent.  The issue for the court was whether or not interim injunction should be granted not whether or not the union was acting as agent of the plaintiffs.  At paragraph 35, Stephenson LJ said:
“The argument that this second master of the men is also in some respects their agent will need evidence to support it ….”

and at paragraph 41, Geoffrey Lane LJ said:
“It is not possible, for instance, to say how far, if at all, the union may have been acting as agent for individual members, in dealing with the employers.” 

The Tribunal’s Judgment:
29.	By way of general observation, this Tribunal plainly strongly disapproved of the fact that the respondents had raised the issues considered by it at all.  It plainly thought that they should not have challenged the claimants’ claims in the way that they did and were very critical of the respondents, referring to matters raised by them as “artificial”, “pernickety” and raising “undue technicality” and “over sophistication” (para 74).  It regarded the respondents as having “the option” of “treating the unions’ letters as a collective grievance” (para 73) and since they did not do so, they could, the Tribunal seems to say, hardly complain that the claimants then argued that they had complied with the requirements of the statutory grievance procedure: “it should have foreseen the unintended consequences of forcing the claimants into the fall-back position of reliance on the standard grievance procedure”(para 73).  There is a strong sense that it thought that the respondents should not have been making a fuss and should just be getting on and dealing with these claims.  That it took a pretty dim view of this public body raising these arguments could not have been made plainer.  I will return, later in this judgment, to the question of whether or not that was an appropriate approach for the Tribunal to adopt.

30.	(1) Regulation 18 -  The Tribunal determined firstly that the definition of “grievance” set out in regulation 2 of the 2004 Regulations was not applicable when deciding whether or not the 2004 letters complied with the requirements of regulation 18, since the regulations were not in force prior to 1 October 2004. It applied the “dictionary” definition (the dictionary relied on is not specified) that a grievance was:
“a wrong (real or imaginary) causing resentment and regarded as grounds for complaint; a feeling of resentment or injustice at having been unfairly treated.” 

31.	Mr Truscott and Mr Gorton appeared to be in agreement that the Tribunal were wrong to have done so; the definition in regulation 2 did apply. Mr Gorton’s position was, however, that it did not matter.  There was no relevant distinction to be drawn between the two definitions.  Mr Gorton’s approach appears to involve reading the reference in regulation 2 to action which the employer has taken or is contemplating taking in relation to the employee as having no particular effect.  

32.	The Tribunal goes on to consider the letters of 21 June 2004, 23 June 2004 and 13 August 2004 and asks whether they could be said to constitute a complaint about a grievance. It determined that the primary purpose of the letters was as a complaint about a grievance and that:
“The fact that the letters expressed the hope that the dispute could be resolved by negotiation did not undermine the primary purpose of the letter as a complaint about a grievance. Neither, in my opinion did the fact that the individual union members were not identified. There were no technical rules prior to 1 October 2004 about who could raise a grievance and how such grievances were to be raised. Union representatives have traditionally represented their members in the regulation of relations between employers and workers, raising grievances at both a collective and individual level about pay and other conditions, and negotiating on behalf of the membership in general, categories of them or individual members.” (paragraph 55) 

33.	Further, judging by a comment made by the Tribunal in paragraph 56 that:
“In my opinion, a union representative acting with the authority of his/ her members would be in the same position as a solicitor when lodging a grievance on behalf of those members.”  

it appears also to have determined that the unions were, in this case, not only putting the respondents on notice that their members had certain grievances but in fact acting on behalf of the individual members when doing so.   Later in paragraph 56, the Tribunal adds:
“A recognised union representative, who would be known to the employer, writing on behalf of an identifiable group of employee union members would be in an entirely different position, and in this case particularly so, since the respondent had been involved with the unions in the review for years, knew the categories of employees affected and had already been made well aware of the unions’ mounting dissatisfaction with its ‘progress’ in dealing with the alleged inequality. Moreover, they could readily have ascertained the names of individuals, if knowing which individuals were included in the grievance had been at all important to them.” 

34.	I note, however, that there were no findings in fact that, in this case, the respondents did know the identity of the individual employees involved.  Nor is the relevance of the last sentence clear; either the statutory provisions require the individuals to be identified and the grievance to have been intimated by them or on their behalf or they do not.  Whether the respondents are interested in the identity of the individuals or not is of no moment when determining the answer to that question. 

35.	Submissions were made to the Tribunal to the effect that the letters related to no more than a collective bargaining procedure and did not constitute the intimation of grievances for regulation 18 purposes.  At paragraph 57, it rejects that argument, commenting:
“Frequently, there will be a total coincidence of interests between the two types of issue and , in most cases, that distinction or coincidence was evident, but to suggest, as Mr Miller did, that the members must be identified by name, was to impose a requirement for extra detail where no need for it was shown and in circumstances in which the background to the letters was clearly understood.” 

36.	The Tribunal thus held that there was no need for the claimants to comply with the statutory grievance procedure because the letters of 21, 23 June and 13 August 2004:

“… constituted a grievance which was raised with the respondent before the statutory procedure came into force.” 

37.	Regulation 9 - the Tribunal found that, even if it was wrong about the application of regulation 18, regulation 9 applied.  It did so in circumstances where it was accepted that the unions had omitted to name at least two individuals in any of the 2005 letters relied on.  It reached the view that that did not, however, matter because it was an omission which, in its view, was without practical effect.  In that regard, it referred, at paragraph 67, to the context as being:
“… the current explosion of equal pay claims against local councils, significant numbers of which are being compromised on an ongoing basis, while new ones continue to be presented.” 

and, in the same paragraph, expressed the view that:
“In a constantly changing landscape of multiple claims, the naming and renaming of two employees would be futile, and unlikely to have been the legislature’s intention.”

38.	The Tribunal sought and considered that it found, support for its approach in the cases of Galaxy Showers Ltd v Wilson [2006] IRLR 83, Grimmer v KLM Cityhopper UK [ 2005] IRLR 596, Richardson v U Mole [2005] 668 and Hamlingv Coxlease School Ltd UKEAT/0181/06/LA, and Canary Wharf Management Ltd v Edebi [2006] IRLR 416, most of which concern compliance with the tribunal’s rules of procedure and none of which are authority for the proposition that it is open to a tribunal to sanction non compliance with a mandatory statutory requirement which sets out a pre-requisite to its jurisdiction. 

39.	Paragraph 6, Schedule 2 to the 2002 Act - the Tribunal then considered whether, in any event, the requirements of paragraph 6 had been complied with.  It found that they had.  It accepted that in writing the letters 17 August and 10 October 2005, the unions were acting as agents for their members.  It referred, in support of that conclusion, to the case of Chappell v The Times Newspapers Ltd [1975] IRLR 90 although without reference to anything specific in the judgments of the Court of Appeal.  Further, it found that it was not necessary for the names of the claimants to be specified. At paragraph 73, it states:
“In contrast to the position under Rule 1 of the Rules of Procedure, at the stage of lodging a grievance , there is nothing to suggest the imposition of any particular requirement for a union as agent to specify by name all the individual members on whose behalf it raises the grievance. If names are regarded as material at that stage, the employer will request them.” 

40.	At paragraph 74, from which I have quoted above, the Tribunal states: 
“…….the respondent had in raising the issues in this pre-hearing review indulged in the kind of pernickety criticism of the form or content of the unions’ letters and attempted to create the kind of undue technicality and over sophistication which the EAT in its judgment in Shergold expressly stated were to be guarded against.” 

The Appeal:
Regulation 18:  Submissions for the Respondents 
41.	Mr Truscott submitted that the Tribunal had erred in all three respects of its decision. Where grievance procedures were concerned, identification of the employee was an irreducible minimum required by both the transitional provisions and the substantive regulations. Regarding regulation 18, if the identity of the person claiming the benefit of it could not be identified then it could not operate.  The letters relied on showed that the matter was being addressed as a collective issue and not that the unions were indicating that they were acting on behalf of any members as individuals.  There was no indication in them of any authorisation by those members to the unions to act as their agents.  Identification was required.  The obiter comments in paragraph 42 of the Alitalia (with which he took issue) did not refer to regulation 18 cases.  
42.	Further, the letters written by the joint secretaries of the various unions should plainly be put to one side.  They could not, on any view, be regarded as sufficient for regulation 18 purposes.  That left the letter of 21 June 2004 and it was plainly concerned with addressing collective issues.

43.	Separately, the Tribunal appeared to have taken the view that it was enough that the Respondents could have found out the identities of the individual claimants if they had wished to do so.  That was an error.  There was no onus on them.  In any event, the Data Protection Principles (Data Protection Act 1998) would have applied to any data held by them regarding union membership. 

Regulation 18: Submissions for the Claimants
44.	In common with the Tribunal’s approach, the claimants’ case relied on the fact that the letters stated a complaint about equal pay that was a longstanding one.  The claimants’ submission was that whilst regulation 2(1) applied to the definition of “grievance” in regulation 18, it only required a complaint by an employee.  Such a complaint could be made on his behalf and the regulation did not prescribe who was to do so in that event.  A grievance could be intimated by an employee’s agent.  Reliance was placed on Warner v Aspland [2006] IRLR 87.  Regarding the role played by trade unions, it was said that the Holland and Young cases should be distinguished and attention was drawn in that regard to the passage in the Tribunal’s judgment at paragraph 55, to which I have already referred, where it states that Union representatives have traditionally represented their members in the regulation of relations between employers and workers, and to the reference in paragraph 57 to there “frequently” being a total coincidence of interests between collective and individual issues.  

45.	Mr Gorton also relied on the Tribunal having stated, at paragraph 45, under reference to the letter of 21 June 2004 that there could be no doubt that Mr Campbell was capable of acting on his members’ behalf and that he was raising a grievance about the respondents’ failure to pay equal pay.  He seemed, initially, to be submitting that that amounted to a finding in fact that the TGWU had actual authority from its members to do so.  Indeed, he referred to the paragraphs 54–58 as a whole and said that the claimants’ position was that what was contained in them amounted to findings which they said were facts.  He did ultimately accept though that the comments appear in the discussion section of the judgment and are not presented by the Tribunal as findings in fact, not being contained in the findings in fact section. Moreover, he accepted that the only evidence available to the Tribunal on the matter of the nature and extent of the unions’ authority, if any, was in the terms of the documents to which I have referred, namely the letters. 

Regulation 9: Submissions for the Respondents 
46.	Mr Truscott submitted that the Tribunal had fallen into error.  Again, it had failed to recognise that identification of those complaining was an irreducible minimum requirement. Further, in this case, the regulation expressly provided for the naming of at least two employees.  It was not open to the Tribunal to dispense with that requirement.  The requirement was not a surprising one; the employer needed to know whose complaint he was dealing with in any such circumstances.  This was not a technical omission which could be ignored.  The Tribunal’s approach was in stark contrast to that which was adopted by the EAT in the Alitalia case.  Further, the Tribunal was wrong to have drawn support from cases such as Grimmer which concerned the application of its rules rather than compliance with the requirements of a principal statute on the fundamental matter of jurisdiction.  If the claimants’ approach was correct, then the respondents would be left not knowing which, if any, of the complaints presented to the Tribunal were covered by the collective grievance.  The “Stefan Cross” claimants, for instance, may or not be members of a trade union.  That could not be right. 

47.	Regarding a suggestion in Mr Moretto’s submission that names could be supplied at a date subsequent to the submission of a collective grievance the problem was, Mr Truscott pointed out, there no such lists were submitted in these cases against these respondents.

Regulation 9: Submissions for the Claimants 
48.	The submissions for the claimant on this matter are to be found principally in Mr Moretto’s written submissions, adopted by all the claimants.  Shortly put, they are to the following effect: Parliament intended that the 2004 Regulations should enable disputes to be resolved in the workplace, it recognised that in certain circumstances, it was not appropriate to insist on compliance with the statutory procedure, that the purpose behind regulation 9 was to provide for deemed compliance where the issue has been raised collectively by the claimants’ trade union, that there could be no doubt that the letter of 17 August 2005 raised a collective grievance, that the respondents had made no attempt, if there was any lack of clarity or confusion, to enquire as to the specific names involved and that accordingly the purpose of the letter was met by the letter of 17 August.  The respondents had been given the opportunity to address the grievance before litigation was commenced and the claimants should not, therefore, be denied access to the courts to establish their right to equality.  In all these circumstances, regulation 9 ought to be read as allowing the union to specify the names of those involved, indirectly:  Alitalia.  That was what they had done here. 

49.	Reliance was also placed on general observations in the Canary Wharf and Shergold cases regarding it being undesirable to construe the regulations in an unduly legalistic or technical manner.  Further, it is submitted that it would be open to a claimant to comply by submitting the names after the submission of the collective grievance.  In that regard, Mr Moretto’s submission states that subsequent provision of names would meet with the requirements of regulation 9 and adds that there are several examples of that in various documents provided for the purposes of this appeal hearing.  That is true.  Various letters have been lodged which might, depending on their context and the circumstances surrounding their communication, amount to sufficient specification of names for regulation 9 purposes.  None of them relate, however, to claims against this Respondent. They all relate to claims against other local authorities. 

Paragraph 6 Schedule 2 to the 2002 Act:  Submissions for the Respondents 
50.	 Mr Truscott again submitted that the fundamental problem was the lack of identification of the employee.  For paragraph 6 purposes, the intimated grievance required to identify an employee by name.  If it did not do so it would not alert the employer to the fact that it was an individual grievance.  It was nonsense to suggest that letters could be sent describing the categories of employees and leave it to the employers to ask for identification if they required it.  The statutory terms did not involve any such shift of onus.  He did not doubt that a trade union could act as an employee’s agent in that regard but the question remained: did it have authority to do so and who was it acting for? 

Paragraph 6 Schedule 2 to the 2002 Act: Submissions for Claimants 
51.	The claimants’ submission firstly involved an argument that the grounds of appeal did not include a challenge to the Tribunal’s finding that the unions were acting as agents of the claimants in submitting the letter of 13 August 2005, a submission which I cannot accept having read the Notice of Appeal which, in my view, plainly flags up such an argument.  The claimants, in any event, dealt with the matter via Mr Moretto’s submission and there was no suggestion that they considered themselves in any way prejudiced in doing so.  It is submitted that in writing the letter the GMB were expressly raising a grievance on behalf of its members and that, as a matter of law, it was not open to the respondents to argue otherwise.  Reliance is placed on two authorities in support of that submission:  Heatons Transport (St Helens) Ltd v TGWU [1972] IRLR 25, Chappell v Times Newspapers Ltd [1075] ICR 145 and Clarke v Redcar & Bainbridge [2006] IRLR 324. Reference was also made to there having been a finding of inferred authorisation in Alitalia.   

Discussion and Decision 
52.	I am persuaded that the respondents’ arguments are well founded and that this appeal should be allowed. 

53.	There was one fundamental that the Tribunal required to address in these cases: did it have jurisdiction to entertain the claimants’ complaints? (2002 Act section 32(2)).  That involved approaching matters on the basis that it was dealing not with a large general equal pay complaint involving a multiplicity of employees, some as yet unidentified, within which detail did not matter and if the employers thought it did then they could attend to that by asking questions or consulting their own records but on the basis that to institute a claim before a tribunal upon which it can properly and competently adjudicate, an individual requires to present a relevant complaint which is presented in circumstances which meet the statutory requirements.   

54.	Jurisdiction is a question of competency and competency questions are amongst those which a Tribunal ought to raise of its own motion.  Thus, if it becomes aware of circumstances which could exclude its jurisdiction it should raise the question, even if not raised by parties. That being so it seems to me that it was quite inappropriate for the Tribunal to state such trenchant criticisms of the Respondents for raising the issue in this case.  It was not for them or anyone else to “opt” whether or not to insist on adherence to the statutory conditions for its jurisdiction.  Further, the Respondents are not a commercial organisation.  They are a public body with well defined duties as to the protection of the public purse and it can be assumed, in the absence of information to the contrary, that its conduct in response to financial claims made against it is carried out in a bona fide exercise of those duties.  It was not, in all these circumstances, appropriate to rain down on them, for taking the point, the animadversion which this Tribunal did. 

55.	The jurisdiction issue noted, consideration then required to be given to the question of whether or not the statutory grievance procedures set out in paragraph 6 of Schedule 2 to the 2002 Act had in fact been complied with.  If they had not, a question arose as to whether the claimants were excused compliance because the provisions of regulation 18 applied?  Then, if regulation 18 did not apply, were the claimants deemed to have complied with the procedure because the provisions of regulation 9 applied.  Failing that, had the claimants in fact complied with the statutory grievance procedure (paragraph 6 of Schedule 2 to the 2002 Act)?  The question remained though, did the Tribunal have jurisdiction and it was that question which, ultimately, it had to answer.  The Tribunal did not do so in terms.  Its judgment is:
“(1) Regulation 18 of the Employment Act dispute Resolution Regulations 2004 applied to the claimants’ claims , which exempted them from the requirement to comply with the statutory grievance procedures, and
(2) that the claims be continued for a hearing on the merits.” 

Regulation 18:
56.	The factual background is to be found in the 3 letters referred to. I will deal with each of these letters in turn. 

57.	The letter of 21 June 2004 was from the TGWU.  The reference point in its heading is to the Red Book, also known as the “single status” agreement.  The complaint is, in essence, that the job evaluation exercise provided for by the single status agreement had not yet been carried out.  The reference that involves their members is to the possibility that:
“our members may opt to protect their legal rights in submitting employment tribunal claims in order to secure equal pay....”

not that the union have been instructed to act for them on their behalf in advancing any such claim. 

58.	The union reminds the respondents, at two points in the letter, that they are available to enter into collective bargaining and advises them that they are determined to resolve “inequalities” by way of a collective agreement.  Nowhere in the letter is it said that they are instructed to act as agents of members or any of them to complain that they had not received or were not receiving equal pay.  

59.	The plain purpose of that letter is to urge the respondents to enter into a collective bargaining exercise with a view to reaching a collective agreement.  That is its theme and that that was its intention is entirely understandable in light of the history to which I have already referred.  The single status agreement had been achieved.  One of the matters identified in it was the need to address the question of job evaluation for Equal Pay Act purposes and the target date originally set had long since past.  The unions’ desire to make progress is entirely understandable.  But none of that nor the terms of the letter either expressly or impliedly show that the TGWU was, in writing that letter, doing so as agent for its members or any of them in any complaint that they had not received or were not receiving equal pay. 
 
60.	Turning to the letter of 23 June 2004, it was written by three trade union joint secretaries. The heading is general:
“EQUAL PAY IN LOCAL AUTHORITIES’ 

61.	It sets out six bullet points which relate to the non implementation of the job evaluation scheme in accordance with the single status agreement.  Where members are referred to it is by way of the group of unions involved being, as a generality, aware of their obligations to their members and in the context of their being concerned to protect themselves from liability:
“The trade unions have a duty to ensure that they are exercising due skill and care on behalf of their members and are themselves not party to any unlawful act.” 

62.	Again, nothing in the terms of that letter shows either expressly or impliedly that the unions were, in writing it, acting as agents for their members or any of them.

63.	Turning then to the letter of 13 August 2004, it appears to be a follow up, on behalf of the GMB alone, to the joint letter of 23 June.  The focus once more is on the implementation of the single status agreement and, reflecting the above point quoted from the joint letter, the GMB’s concern to:
“exercise due diligence on behalf of its members."

64.	Once more, nothing in that letter shows either expressly or impliedly that the GMB were acting as agents for their members or any of them in making a complaint that they had not received or were not receiving equal pay.  

65.	In summary therefore, the facts before the Tribunal were:
(1)	that on three occasions before 1 October 2004, unions had written to the Respondents;
(2)	the principal complaint in those letters concerned their failure to carry out the job evaluation exercise provided for by the single status agreement to which the unions and the respondents had been parties (the outcome of which cannot, of course, be assumed); 
(3)	the letters also contained a general assertion that the unions’ members had suffered inequalities in pay for many years and were continuing to do so; 
(4)	the unions were pressing the Respondents to enter into a collective bargaining exercise;
(5)	the unions wanted to try and deal with the matter by way of a collective agreement; 
(6)	the unions were concerned regarding their own position vis-à-vis their members;  
(7)	in none of the letters did the unions state that they were also writing in the capacity of being agents for their members; and 
(8)	there was no other evidence of express or implied appointment of the unions as agents for any of their members. 

66.	The Tribunal did not in fact make any finding that the unions did have such authority.  It made general reference to the possibility of such authority being conferred and to the possibility of a grievance being intimated by an agent on behalf of an employee (Mark Warner v Aspland).  It referred to the possibility of a recognised union representative being known to an employer and writing on behalf of a recognised group of individuals.  It referred to the respondents being well aware of the unions’ mounting dissatisfaction and being aware of the categories of employees affected.  It referred to there being no suggestion that the respondents intended to negotiate with any individual employees.  The Tribunal does not actually state whether or not it was satisfied that the unions intimated grievances in 2004 as agents for their members but moves straight into consideration of the separate issue of whether or not there was a need to identify individuals.  Yet it required to determine whether or not the unions were acting as agents for their members in writing their letters.  It ought to have done so.

67.	This is an issue which I can, I am satisfied, decide, since it falls to be determined on a consideration of the documents alone.  The claimants’ argument was to the effect that whilst it was recognised that they were written by the unions wearing a “union” hat with a view to collective bargaining and collective agreement, they were also written as agents of their members.  That is not a tenable position.  It would, of course, be possible for a union to write a letter on that basis but it would need to make it clear that it was writing in that dual capacity. The claimants’ submission amounts really to saying no more than that because a union could do so, these unions should be regarded as having done so.  That is not right.  The letters cannot be construed as having been written by the unions in an agency capacity for the reasons I have indicated. 

68.	The relevant law is set out in regulation 18, which is set out above.  I agree with parties that the Tribunal were wrong to ignore the definition of “grievance” set out in regulation 2.  It plainly requires to be referred to, to gain a full understanding of the meaning of regulation 18, which uses the word “grievance”.  It is of no moment that the definition in regulation 2 only came into effect as at 1 October 2004.  Regulation 18 did not come into effect until that date either. Consideration to the transitional provision, inevitably, required to be given after the coming into force of the regulations; a regulation 18 issue could not arise until after 1 October 2004.  The fact that a set of pre 1 October 2004 facts had to be considered does not point to any need to ignore the interpretation provisions of regulation 2 when assessing them.

69.	Regulation 18 is in terms that are more straightforward than some of those contained in the 2004 regulations.  If the employee in a tribunal complaint raised with his employer a complaint about that conduct on the basis that it was conduct taken, being taken or about to be taken by the employer in relation to him, then the statutory grievance procedure does not apply and the tribunal has jurisdiction to entertain the complaint even if it has not been complied with. 

70.	I turn then to the facts and circumstances of these cases.  The claimants’ complaints about equal pay are continuing complaints for the purposes of regulation 18.  The question that arises is whether they required to comply with the statutory grievance procedures before presenting those complaints to the Tribunal. The approach of the Tribunal and of the claimants involves concentrating on the fact that the letters made it clear that complaints about equal pay were being made.  That is but part of what is required by regulation 18, however.  The relevant complaint requires to have been made by an employee about action taken, being taken or going to be taken in relation to him.  The claimant who seeks to present a claim to the tribunal requires to have made, at some stage prior to 1 October 2004, the same complaint by way of a grievance (within the meaning of regulation 2), to his employer.  It does not have to have been communicated in any particular form but it does have to have emanated from the claimant and to relate to action directed at him.  That could be achieved if an agent acting with authority to do so communicated it on his behalf but a general complaint by an organisation such as a trade union not acting as an agent and not having any such authority cannot fall into that category.  Nor does the fact that such an organisation has the interests of its members at heart or the fact that it, as here, desperately wants to see a particular issue sorted out and passionately believes that there has been undue delay on the part of the employer.  All these feelings may well be justified but regulation 18 does not, in short, cater for them.  The circumstances of these cases are not covered by it and the Tribunal did not, accordingly, have jurisdiction unless regulation 9 applied (deemed compliance with the statutory grievance procedures) or it could be satisfied that the statutory grievance procedures had in fact been complied with. 
Regulation 9:
71.	Regulation 9 only applies where at least two names have been specified. It is not surprising, therefore, that as is recorded by the Tribunal at paragraph 62, it was conceded on behalf of the claimants that the requirements of regulation 9 had not been complied with. 

72.	For the reasons I have already explained, I do not accept that, as a matter of principle, compliance with regulation 9 could be achieved by some sort of cross reference without the naming of names.  As regards the particular circumstances of this case, however, it cannot even be said that that is what was done.  The GMB said, in its letter of 17 August 2005, that they wished to register a collective grievance for “our women members” (my emphasis) employed as at that date in certain categories but that leaves open and unidentifiable the question of who, of the respondents’ workforce, were GMB members as at 17 August 2005 (I agree with Mr Truscott that, given the data protection principles, it cannot be assumed that the respondents would know or could find that out).  Further, bearing in mind that the tribunal complaints involve equal pay claims going back for years, it does not begin to indicate that persons whose employment predates 17 August 2005 are meant to be covered by the letter.  

73.	The Tribunal determined that compliance with regulation 9 could be regarded as having been achieved because, put shortly, providing names was but a technical requirement and there were means whereby the respondents could find out who was intended to be covered by the grievances.  The Tribunal were wrong to regard the naming of names as being only “technical”. Like it or not, it is a clear statutory requirement.  It is not without point.  Absent the naming of names in the collective grievance, it will not be evident whether a subsequent tribunal complaint relates to it or not.  Since the provision is one which confers a “deeming” benefit on a claimant, it is not surprising that Parliament decided to impose the degree of rigour that is imposed by the requirement for specification of that claimant’s name in the collective grievance that is relied on.  I am readily satisfied that the Tribunal fell into error as regards the applicability of regulation 9.

Paragraph 6, Schedule 2 to the 2002 Act:
74.	To amount to compliance with the statutory grievance procedures, the letters of 17 August and 10 October 2005 would have had to amount to communication either by or on behalf of the individual employee claimants of their equal pay grievances.  Like the 2004 letters, they are both written with reference to the failure to carry out the intention of the single status agreement regarding job evaluation and to their members having equal pay complaints. Further, they are written, in terms, on the basis that they are seeking to register not individual but collective grievances.   

75.	In common with the 2004 letters, there are no express indications that the unions are writing in an agency capacity.  The “collective” references are to the contrary and nothing is done to notify the employer that, in addition to fulfilling their union role as collective negotiator, they are also acting as agents for the individual claimants who, though unspecified, lie behind the complaints being made. 

76.	It is essential, for the purposes of paragraph 6, that a grievance has been intimated by the employee who is subsequently seeking to present a claim to the tribunal, or by his agent. The Tribunal appears to have recognised that.  It dealt with it by finding that, in writing the letters, the unions were acting as their members’ agents.  There was, however, no evidential basis on which it was open to it to do so.  It rightly recognised that a union could act as agent for an employee but, in common with the submissions advanced by the claimants in this appeal, it seems then to say that because a union could do so, these unions did do so.  That will not do.  Further, it was wrong to see the comments in authorities such as Shergold v Fieldway Medical Centre [2006] IRLR 76  to the effect that the paragraph 6 requirements are minimal, as somehow relaxing the basic requirement that the employee has intimated his grievance to his employer or his agent has done so on his behalf.  Finally, it is in this part of their judgment that the Tribunal appears to be most influenced by its view that these points just should not have been taken by the respondents.  For the reasons that I have already explained, it was not appropriate for them to do so. 

77.	In all the circumstances, I am also readily satisfied that paragraph 6 of Schedule 2 to the 2002 Act was not complied with. 

Disposal
78.	I will accordingly uphold the appeal and dismiss those claims to which the judgment of the Employment Tribunal dated 31 July 2007 applied.