GMB v Allen and ors
Indirect discrimination (which can be justified by employers) applies to policies, criteria and practices that appear to be gender neutral, but which in reality disadvantage one gender more than another.
In GMB v Allen and ors, the Employment Appeal Tribunal (EAT) said that the union was entitled to adopt a policy that prioritised the interests of one group of members over another because its overall aim was legitimate.
Basic facts
Following the introduction of the Green Book agreement between Middlesbrough council and the local trade unions, manual and clerical workers were assimiliated to a single pay spine.In order to implement the agreement, the council carried out a job evaluation study, effective from 1 March 2005.
As a result of the previous payment structure operated by the council (and in particular the provision of bonus payments to predominantly male manual workers), Mrs Allen and the other claimants alleged they had valid equal pay claims, entitling them to claim up to six years’ back pay.
However, the union also had members who were in danger of losing pay as a result of the 2005 job evaluation exercise, as a result of which the council introduced a pay protection scheme.
The claimants alleged that the GMB had prioritised the interests of its male members needing protected pay rather than the equal pay claims of the women members.
Due to the council’s limited resources, the union agreed that the council should make offers to the union’s female members with potential back pay claims and also agreed a pay protection scheme. The offers were less than the women could have achieved had they successfully presented a claim to an employment tribunal.
Mrs. Allen and the other claimants subsequently brought a sex discrimination claim against the union, arguing that it had discriminated against them (both directly and indirectly) and that it had victimised them.
Tribunal decision
The tribunal said that the union’s aim was not specifically to protect men’s pay, but “to achieve equality with as little collateral damage as possible. That is a legitimate aim.” On that basis, it said that the union was not guilty of direct sex discrimination.
However, it was also very critical of the union, saying that it had rushed “head long” into an ill-considered back pay deal and had manipulated the women by not explaining that the offer was much less than they might get if they were successful at tribunal.
Given that criticism, the tribunal said that the union had discriminated indirectly against the women by agreeing to a low back pay settlement in order to release money “for the future pay line and pay protection.”
It said that the union then victimised Mrs Allen and her colleagues by failing to provide the women with any support or advice in relation to their claims when they instructed a “no win no fee” solicitor to represent them. The union appealed.
EAT decision
The EAT upheld the appeal in relation to the indirect discrimination and victimization findings, saying that “Once it is accepted that the objective or aim [the new pay and grading structure] was legitimate, then in our judgment it is difficult to see how it can be alleged that the means were inappropriate. The policy or practice under consideration involved determining priorities. There are not, in truth, different means of achieving that objective. In so far as the means involve giving greater weight or influence to the interests of the back payers, they simply change or distort the objective. This is one of those cases where the identity of the objective in substance determines the means.”
Although the EAT criticised the settlement process, it pointed out that was not to suggest “that other more proportional means could have been used to achieve the same objective. Rather it is saying that had the union acted properly, the objective might not have been reached at all and some other objective would have had to be adopted.”
Finally, it also rejected the victimisation claims, saying that there was no evidence on which the tribunal could have come to the conclusion “that the union had victimised these claimants by failing to provide them with support.”