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Allen and ors v GMB

It is indirectly discriminatory to apply a provision, criterion or practice (PCP) that disproportionately affects far more women than men and cannot be justified. In Allen and ors v GMB, the Court of Appeal said that although the union’s aims were legitimate, the means it had used were disproportionate to achieving them.

Basic facts

In 1997, a number of trade unions and local authority employers negotiated the “single status” deal for manual workers and white collar staff which resulted in a common pay and grading structure for the two groups. It was also agreed that local councils would carry out job evaluation studies, which highlighted a number of equal pay issues.

In Middlesbrough, the GMB faced conflicting pressures from women members with equal pay claims and members who were going to lose out in future as a result of the new structure whose pay would be cut. But it was also concerned that the council might cut jobs or contract out services.

The union therefore had to find a balance between pay protection (for both men and women) and ensuring that the women were paid equally in the future as well as their back pay claims. That prompted some of the women to claim direct and indirect discrimination against the union.

Tribunal and EAT decisions

The tribunal dismissed the claim of direct discrimination saying that the deal was not gender-based. Instead, it said that the union’s 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."

However, it concluded that the union had engaged in indirectly discriminatory practices which it could not justify. Although the union’s aim (to implement the single status deal) was legitimate, the means it used were disproportionate. For instance, the tribunal said that it should not have rushed headlong into a deal with the council while failing to advise the women of their chances if they took their claims to a tribunal. It also said that the union had accepted the council’s pleas of poverty too quickly.

The union appealed and the Employment Appeal Tribunal overturned the finding of indirect discrimination. It said that as it had been legitimate for the union to prioritise pay protection, it was hard to see how it could be argued that the means to achieve that aim were inappropriate.

Court of Appeal decision

The Court of Appeal, however, allowed the women’s appeal, saying that the means adopted by the union were disproportionate to the attainment of their legitimate aim – of striking a balance between back pay for some members, future pay for all members and the need for protection for others.

The Court identified a number of concerns originally made by the tribunal about the “means” that the union adopted. These included not giving advice about back pay to avoid antagonising the council and rushing headlong into an ill-considered pay deal. Crucially from the Court’s view, it also failed to fully inform the claimants about the options available to them. It concluded that such “misselling and manipulation” were disproportionate to the achievement of the union’s overall aims.

So although the objective was a legitimate one, it “was not the only possible legitimate one. If it were achievable only by disproportionate means, then it would not be susceptible to justification. To conclude otherwise would be to licence disproportionality.“