GMB v Allen
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lady Justice Smith,Lord Justice Tuckey |
| Judgment Date | 16 July 2008 |
| Neutral Citation | [2008] EWCA Civ 810 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2007/2424 |
| Date | 16 July 2008 |
[2008] EWCA Civ 810
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(ELIAS J, MR P JACQUES CBE and MR S YEBOAH)
Lord Justice Tuckey
Lady Justice Smith and
Lord Justice Maurice Kay
Case No: A2/2007/2424
REF NO: EAT 042506DA
Mr Andrew Stafford QC and Mr Chris Quinn (instructed by Stefan Cross) for the Appellant
Mr John Cavanagh QC and Mr Jason Galbraith-Marten (instructed by Thompsons) for the Respondents
Hearing dates : 7 + 8 May 2008
Prior to 1997, the terms and conditions of employment applicable to local authority employees were set out in different documents which were referable to different categories of employees. Manual workers were governed by the White Book whilst administrative, professional, technical and clerical (APT&C) workers were governed by the Purple Book. A third category of craft workers came under the Red Book but this case does not concern that category. As regards the White Book and Purple Book employees, it was recognised that some gender-based pay inequalities had been allowed to develop. In 1997 a national collective agreement – the Green Book – was negotiated between the relevant trade unions and the local authority employers. The intention was to bring the White Book and the Purple Book employees under a new system with a common pay and grading structure. It was to be known as “single status”. Although the overarching structure of single status was the result of a national agreement, it was envisaged that actual pay scales and pay rates would be devolved to local level and that, in order to eradicate historical inequalities, local agreements would be preceded by local job evaluation studies. Each job would be assessed and placed on the appropriate Green Book scale. This proved to be a complex exercise. In Middlesborough, a job evaluation study was carried out and, in due course, new terms and conditions reflecting it came into effect on 1 April 2005. GMB (the Union) was one of the unions which negotiated the new terms and conditions with Middlesborough Borough Council (the Council).
The complexity of these circumstances is plain to see. From the Council's point of view, the funding of any pay deal is heavily dependant upon the flow of money from central government and takes place against the backdrop of “capping”. On the other side, the Union has to represent members in different categories whose interests can and do conflict. Put very simply, the Council sought an outcome that was affordable. The Union wanted one that somehow compensated the victims of past inequality but at the same time provided a measure of pay protection for those who were disadvantaged by the job evaluation study and maximised the amount available for future pay across the board. In addition, the Union was constrained by the natural perception that, if it pushed too hard, the consequences might include job losses and contracting out, neither of which would be in the interests of its members.
It is beyond dispute that, faced with these conflicting pressures, the Union decided to give priority to those who needed pay protection and to achieving equality and better pay for the future rather than to maximising claims for past unequal pay. The deal done between the Union and the Council provided the White Book women with some compensation for the historical inequalities (in the region of 25% of the full value of successful equal pay claims) but did not provide the Purple Book women with any such compensation, the Council having apparently taken the view that their equal pay claims were without merit.
The present dispute concerns the claims of White Book and Purple Book women against the Union. They claimed that the Union's prioritisation of pay protection and future pay over compensation for past inequalities was itself discriminatory – either directly or indirectly or by way of victimisation. Following a lengthy hearing, the Employment Tribunal (ET) rejected the claim of direct discrimination, finding the evidence of the Union officials to be “completely and utterly convincing” in establishing that the reason why the deal with the Council took the form that it did was not gender-based but was “an attempt to keep the peace and to appear to as many people as possible to have done a good job as a union in representing the interests of all members” (paragraph 7.32). It added (at paragraph 7.33):
“The approach to the pay structure was always to get as much as possible for everybody. Men and women were treated no differently at all in that respect.”
Moreover, the Union's negotiators did not perceive pay protection to be a “male issue”, not least because many female clerical staff were among its beneficiaries. The rejection by the ET of the direct discrimination claim has not been challenged on appeal.
On the other hand, the indirect discrimination and victimisation claims succeeded before the ET. The Union successfully appealed those aspects of the case to the Employment Appeal Tribunal (EAT) but the EAT (Elias J, Mr P Jacques CBE and Mr S Yeboah) granted the claimants permission to appeal to this Court on the issue of indirect discrimination. Before turning to the present appeal, it is necessary to set out the relevant statutory provisions and the different reasoning of the ET and the EAT on indirect discrimination.
The statutory provisions
Section 12(3) of the Sex Discrimination Act 1975 provides:
“It is unlawful for an organisation [of workers] in the case of a woman who is a member of the organisation to discriminate against her –
(a) in the way it affords her access to any benefits, facilities or services or by refusing or deliberately omitting her access to them … or
(b) by subjecting her to any other detriment.”
Indirect discrimination against a woman occurs if a person
“applies to her a provision, criterion or practice which he applies or would apply equally to a man, but –
(i) which is such that it would be to the detriment of a considerably larger proportion of women than of men;
(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied; and
(iii) which is to her detriment.”
This is the wording of section 1(2)(b) as amended by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001. (A further amendment by the Employment Equality (Sex Discrimination) Regulations 2005 came too late to apply to this case and would probably not make a significant difference to the outcome in any event).
The decision of the ET
The conclusion of the ET was that, by agreeing to a low back pay settlement in order to release more money for pay protection and the future pay line, the Union had engaged in a potentially discriminatory practice. The disadvantaged group were predominantly women. The Union had failed to justify the discriminatory practice. This was because of certain aspects of the Union's approach of which the ET was critical. There were four principal matters of concern. First, the Union had failed to protect the interests of the claimants by not pursuing proceedings at an early stage so as to establish an early date for the calculation of back pay. Even if the Union had preferred not to litigate, it should have protected the claimants in this way. Secondly, the Union had deliberately omitted to give advice about back pay and had refused to support litigation in order not to antagonise the Council or to delay or impede the progression to single status. Thirdly, the Union had “rushed headlong” into an ill-considered back pay deal. It had accepted too readily the Council's plea of poverty. Finally, and, it seems, crucially, the Union had failed to give the claimants a fully informed choice about the options available to them. They had not been informed that what they were being offered was substantially less than they might receive following successful litigation and there was no assessment of the litigation risk which the ET considered to be relatively small, at least for some of the claimants. The ET considered that, if the Union was going to require the claimants to make some sacrifice in the interests of other members, then that should have been made plain to them. There had been not only a failure to provide full information but also positive manipulation of “relatively unsophisticated claimants” by suggesting that the offer from the Council was acceptable and placing them in a position where they were in fear that, if they pressed for more, it might lead to job losses and to their being seen as traitors by their colleagues. The ET considered this to be “the worst aspect of the case”.
In considering justification, the ET noted that it was common ground that the appropriate test was to ask whether the means adopted by the Union were proportionate to the attainment of a legitimate aim. The following passages are particularly relevant:
“7.54 … The end goal was to achieve single status viewed as the panacea. En route to the end goal, the aims were to avoid privatisations, avoid job losses, avoid cuts in hours, avoid or minimise 'losers' and in so far as losers were inevitable to get the best possible pay protection. Those aims are all legitimate … So let us turn to the proportionality of the means to the end.”
“7.56 As we have found, the means which they adopted in respect of Mrs Spayne [a White Book employee] were to provide her with advice on back pay which as Mrs Bartholomew [a Union official and...
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