West Law Report

Union discriminated against women

Posted in Times Law Report by mrkooenglish on September 3, 2008

From The TimesSeptember 1, 2008

Union discriminated against women
Court of Appeal
Published
September 1, 2008
Allen and Others v GMB
Before Lord Justice Tuckey, Lady Justice Smith and Lord Justice Maurice Kay
Judgment July 16, 2008

A trade union was not justified in indirectly discriminating against a number of female members in resolving gender-based pay inequalities among local authority employees.

The Court of Appeal so held allowing an appeal by the claimants, Sheila Allen and 25 others, from a decision dated July 31, 2007, of the Employment Appeal Tribunal (Mr Justice Elias, President, Mr P. Jacques and Mr S. Yeboah) which: (i) upheld the decision of a Newcastle upon Tyne employment tribunal on June 6, 2006, that the respondent trade union, GMB, had indirectly discriminated against the claimants within sections 12(3) and 1(2)(b) of the Sex Discrimination Act 1975, as amended by regulation 3 of the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (SI 2001 No 2660) but (ii) allowed the union’s appeal from the tribunal’s decision on the basis that the union’s conduct had been justifiable irrespective of the sex of the claimants within section 1(2)(b)(ii) of the 1975 Act.

The court remitted the matter to the employment tribunal for a remedies hearing.

Before 1997, gender-based pay inequalities developed among local authority employees who were subject to varying terms and conditions of employment according to a system of categorisation of types of employment.

In 1997, trade unions and local authorities negotiated a national collective agreement intended to bring all employees under a new system with a common pay and grading structure to be known as single status. Actual pay scales and pay rates were to be dealt with in local agreements further to local job evaluation studies designed to eradicate historical inequalities.

Further to such a study in Middlesbrough, new terms and conditions were brought into effect on April 1, 2005 in the form of an agreement negotiated between unions, including the respondent union, GMB, and Middlesbrough Borough Council.

In the negotiations which led to the deal, the GMB gave priority to those of its members needing pay protection and to achieving equality and better pay for the future rather than to maximising claims for past unequal pay.

The deal provided some women with compensation for historical inequalities in the region of 25 per cent of the full value of successful equal pay claims and some women with none at all.

The women claimed that the union’s prioritisation of pay protection and future pay over compensation for past inequalities was discriminatory. The employment tribunal found that the deal, having been potentially indirectly discriminatory in that the group disadvantaged by it were predominantly women, was not justified because of matters of concern regarding the union’s approach to the deal, including its failure to give the claimants a fully informed choice, its having manipulated them into accepting the deal by threatening job losses and its having failed to make plain to the women that they were being required to make some sacrifice in the interests of other members.

Mr Andrew Stafford, QC and Mr Chris Quinn for the claimants; Mr John Cavanagh, QC and Mr Jason Galbraith-Marten for the GMB.

LORD JUSTICE MAURICE KAY said that indirect discrimination arose under section 1(2)(b) of the 1975 Act, as in force at the relevant time, when a person applied to a woman a provision, criterion or practice which he applied or would apply equally to a man but which was such that it would be to the detriment of a considerably larger proportion of women than of men.

The woman’s claim then succeeded if the person could not show the provision to be justifiable irrespective of the sex of the person to whom it was applied and she established that it was to her detriment.

In the present case, it was important to identify what was the provision the application of which was said to have given rise to the indirect discrimination, because it was the provision itself which must be shown to be justifiable if a finding of indirect discrimination was to be avoided.

In this case, the provision was the deal made between the union and the council as a result of the union’s policy to achieve single status with the minimum of losers. Having established that the provision had a legitimate aim, it fell to the union to justify it.

It was common ground that the test for whether the indirect discrimination was justified was whether the means adopted by the union were proportionate to the attainment of a legitimate aim.

The central question then became whether the mis-selling and manipulation, as found by the employment tribunal, could be characterised as the means to the attainment of the union’s admittedly legitimate aim of achieving single status with the minimum of losers.

The adoption of the provision must have assumed that steps would have to be taken to persuade disadvantaged women to accept sacrifices, including forbearance from litigation to enforce perceived statutory rights, and such steps were therefore to be regarded as part of the means to achieve the aim.

To identify the means as the balance struck in the deal, as the Employment Appeal Tribunal had done, was too narrow a view of the concept of means, which concept was not inherently narrow.

A number of different actions might each be part, and a necessary but not equal part, of the means of achieving the aim.

The employment tribunal concluded that the provision involved persuading the claimants and others in a similar position to make sacrifices. In other words, such persuasion and the form it took were part of the means.

That was the correct approach to have taken and the employment tribunal did not fall into any material error when, on the basis of the facts found, it concluded that the means were disproportionate to the overall aim or aims.

The employment tribunal had not erred in its approach to justification and the Employment Appeal Tribunal had been wrong to allow the union’s appeal on that central issue.

The appeal would be allowed and the decision of the employment tribunal on indirect discrimination reinstated.

Lord Justice Tuckey and Lady Justice Smith agreed.

Solicitors: Mr Stefan Cross, Newcastle upon Tyne; Thompsons

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