NEWS: Review of Cannop v Highland Council, 2008 SLT 625

Posted On: 02 March 2009

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Cannop v Highland Council, 2008 S.L.T. 625

Alice Stobart, Advocate

The question of whether a claimant has submitted a grievance and then a form ET1 in terms such as to allow the employment tribunal to hear the claim has vexed many a claimant since the introduction of the Employment Act 2002.  In this case the issue affects a huge number of claimants estimated at 50,000 who currently have equal pay claims pending before the employment tribunals throughout Scotland.

Cannop v Highland Council, 2008 S.L.T. 625 is an appeal from the EAT to the Inner House of the Court of Session on the question of the employment tribunal's jurisdiction in circumstances where an employee brings an equal pay claim having lodged a grievance which named comparators different to those subsequently named in the form ET1.  Section 32 of the Employment Act 2002 states that an employment tribunal will only have jurisdiction to hear a claim if it concerns matters in relation to which a grievance has been set out in writing and sent to the employer.

In Cannop some claimants, notably those represented by Stefan Cross (the "SC claimants"), had, within their grievance, named comparators in terms of job types found within the Scottish Council of Local Authority Services (Manual Workers) Scheme of Pay & Conditions of Service ("the Green Book").  However, by the time they lodged their employment tribunal claims, they had discovered other job types in the same category of Green Book manual worker that they could compare themselves with and so included those also.  In other cases before the employment tribunal, particularly where the employees were represented by a union, the union had lodged a collective grievance naming no actual comparators but indicating that their members in the manual worker category did not receive equal pay to their male colleagues ("union-backed claimants").

The respondent sought to establish before the tribunal that where a form ET1 specified different comparators to those in the grievance, then those parts of the claim relating to new comparators should be struck out.

The Stefan Cross claims came before the tribunal, where it was accepted by the respondents that step one of the standard grievance procedure contained at Part II of Sch.2 to the Employment Act 2002 had been complied with, i.e. that the SC claimants had "set out the grievance in writing and [sent] the statement or a copy of it to the employer".  However, the respondent asked the tribunal to "take a red pen" to the claims, deleting the additional comparators named in the form ET1 which were not named in the grievance.

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This article was previously published in Employment Law Bulletin, Issue 87.