Under the Sex Discrimination Act, workers have the right not to be treated less favourably by their employer if they bring a claim under the Equal Pay Act.
In St Helens MBC v Derbyshire & 38 ors (IDS 766), a case which involved a class action for equal pay, the employment appeal tribunal (EAT) has said that the council victimised the women by sending warning letters to them.
The employees were supported by the GMB throughout, and their claims were backed by Thompsons.
Why did the women claim victimisation?
The 39 applicants were among 510 catering staff who made equal pay claims in 1998.
The majority of the claims were settled out of court, but 39 of the women did not accept the borough council's offer of a lump sum. Their claims were ultimately successful.
Two months before the hearing, however, the women received two letters from a senior council officer. The first was addressed only to the applicants, warning that the council could not absorb the cost of their claims and asking them not to continue; and the second to all catering staff (including the 39 applicants) warning that children might be deprived of school meals and that everyone's job would be at risk if the claims were successful.
The letters caused great distress to Mrs Derbyshire and her colleagues, who said they amounted to victimisation, and an attempt to intimidate them into abandoning their case.
The tribunal dismissed their claim, but the EAT allowed their appeal and remitted the case to a different tribunal to be heard again.
The second tribunal agreed with the catering staff that the letters did amount to victimisation because they contained 'what was effectively a threat'. It said that they 'amounted to an attempt to induce the acquiescence of individuals...It was more than a matter-of-fact reminder of what might happen if they went on with a complaint'.
The council appealed against that decision.
What did the parties argue?
The council argued that any distress that the letters may have caused the women did not amount to 'less favourable treatment', because that had to involve something more than just writing a letter.
Instead, the letters would had to have contained threats levelled directly against the individual women to constitute less favourable treatment - for example, that if they continued with their claims they would be fired or demoted.
It said that telling the women that the council would go bankrupt could not constitute less favourable treatment. To decide otherwise would mean that employers could be sued just for commenting or communicating with their staff, if they subsequently alleged that their feelings had been hurt.
The women, on the other hand, argued that victimisation does not have to consist of direct threats to workers to find that they were treated less favourably within the meaning of the Act. They accused the council of trying to give the phrase an unjustifiably narrow interpretation.
What did the EAT decide?
The EAT dismissed the appeal. It said that the primary purpose of the victimisation legislation was to ensure that individuals are not penalised because they have exercised their statutory rights, or intended to do so. The legislation simply requires a comparison between 'the treatment afforded to the complainant who has done a protected act and the treatment that was or would be afforded to other employees who have not done the protected act.'
Interestingly, the appeal tribunal recognised the particular sensitivity that can arise in public sector equal pay claims and the far reaching effects successful claims can have on pay structures or grading systems. It also recognised the potential vulnerability in the workplace of women pursuing such claims, particularly their relationships with workplace colleagues.