Court of Appeal Judgement: union found guilty of sex discrimination
July 2008
On 16th July 2008 the Court of Appeal handed down its long-awaited Judgment in the case of Allen & Others v GMB [2008] EWCA Civ 810.
As many readers will recall, in this case the GMB was alleged to have discriminated against those of its female members who had legitimate equal pay claims against Middlesborough Borough Council. The Union was said to have prioritised the needs of its male members by concentrating on the need to provide pay protection for those who stood to lose financially when the Council implemented the Single Status Agreement, at the expense of its female members who had legitimate equal pay claims.
The direct discrimination and victimisation claims fell before the lower courts and were not appealed. The issue before the Court of Appeal was therefore solely whether the Union was guilty of indirect discrimination. The Court found that the Union had adopted a “practice of agreeing to a low back pay settlement for [female employees] in order to leave as much money as possible for the pay line in the future and pay protection”. This practice benefited a majority of males at the expense of females.
Interestingly, the Court of Appeal was happy to accept that what the Union had been trying to achieve was a legitimate aim. After all, it had the unenviable task of trying to achieve equality of pay for its female members whilst avoiding privatisation, job losses, cuts in hours and dramatic and distressing drops in pay for significant numbers of its male members. The Court of Appeal was not happy, however, with the way that the Union went about it. The Union was found to have mis-sold the back pay offers to its female members by failing to inform them adequately of the true value and merit of the equal pay claims they were giving up, and manipulated them into accepting the back pay offers.
This Judgment will no doubt send shockwaves through the trade union movement and do nothing to assist the increasingly stagnated negotiations taking place currently throughout the country between the trade unions and many local government employers over the implementation of Single Status. If that occurs, however, it will be a shame. When the dust has settled, the writer’s hope is that the Unions will learn from their mistakes but continue with the key role which they have to negotiate and seek collective agreement wherever possible with public sector employers and so provide increased pay and, just as important, stability, for their male and female members.
If the Court of Appeal has sought fit to remind us that, when it comes to discrimination, the ends do not justify the means, so much the better.
http://www.bailii.org/ew/cases/EWCA/Civ/2008/810.html” title=“http://www.bailii.org/ew/cases/EWCA/Civ/2008/810.html”>http://www.bailii.org/ew/cases/EWCA/Civ/2008/810.html