The EAT has held, in The Highland Council v TGWU/Unison that an employee needs to identify her comparator (at least by reference to job type) in a statutory grievance. Thus a grievance comparing the Claimant with a man doing job type 'A' cannot suffice to permit an equal pay claim using a comparator doing job type 'B' to proceed. (see para. 31)
In circumstances where the Claimant discovers a materially different comparator after lodging her grievance, she has the choice of:
- lodging a further grievance letter - and it is always open to employer and employee to agree that one grievance meeting will cover both grievances (para. 33);
- if tribunal proceedings have already started, amending the existing claim under normal principles - when s32 of the Employment Act does not apply (para 34); or,
- if permission to amend is not granted, start afresh in respect of the new comparator, with a fresh grievance and a fresh tribunal claim (para. 34)
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