EAT Practice and Procedure: Preliminary Issues – Jurisdiction – Dispute resolution procedures
The six Claimants worked in a unionised office. In 2008, several of their colleagues raised a grievance which included complaints about not having being paid night-shift premium, a failure which had been ongoing since the office opened in 2005. A claim was not made until 2011, after continuation of the same series of deductions. If one had been made before 5 April 2009, the dispute resolution procedures under the Employment Act 2002 would have been mandatory. As it was, the transitional provisions applied. At a first hearing it was accordingly held that because none of the six were named in their colleagues’ collective grievance, the Employment Tribunal had no jurisdiction to hear any part of the claim. After appeal to the Employment Appeal Tribunal, the matter was remitted to the Employment Tribunal to decide if the Claimants had been party to the grievance within the meaning of the transitional provisions and dispute procedure regulations. At that, the Employment Tribunal decided that the grievance had been one presented by a trade union representative on behalf of those making it, and that the Claimants were party to it. He held that the collective grievance fell within the regulations, and that to suggest that the Claimants were not party to it was to take an unduly technical approach. Since it was common ground that no Claimant had been named or identified in the grievance, nor had any signed it, there was no adequate basis to hold that any was a party to it. Since the dispute resolution procedures had been abolished, and the transactional provisions did not apply to render them applicable to the Claimants’ cases (since the Claimants had not been a party to any grievance which fell within the regulations prior to 5 April 2009), the post April 2009 law applied, and there was no jurisdictional bar to the claims proceeding. The appeals were allowed, though it was accepted that it remained open to the Respondent to argue that insofar as the claims related to underpayments prior to 5 April 2009, they might be barred for failure then to comply with the dispute resolution procedures.
Langstaff P J
[2015] UKEAT 0039 – 13 – 1803
Bailii
England and Wales
Employment
Updated: 29 December 2021; Ref: scu.545910
