The Employment Appeal Tribunal's (EAT) decision to allow the GMB's appeal in the sex discrimination litigation will have come as a big relief to both unions and employers dealing with mass equal pay litigation. But we are not out of the woods yet, as it was far from a complete victory for the union.
Ms Allen and her fellow litigants convinced the EAT that the union's policy of giving more weight to preserving pay and jobs than to claims for back pay under the Equal Pay Act did potentially discriminate against women. But they fell at the final hurdle, because the EAT concluded that the treatment of the women was justified on this occasion, ie, a proportionate means of achieving a legitimate aim.
The women will have been encouraged by the EAT's remarks that, although there had been no discrimination, that did not mean that the union had behaved well. It is thought that the GMB could be vulnerable to a claim that it had misled the women about the true value of their claims, which were reportedly settled at around 25 per cent of what the council thought they could be worth. These remarks tie in with recent reports that as many as 3,000 claims have been launched by workers in the NHS and local government sectors against a number of public sector unions, alleging that their equal pay claims have been handled negligently. An appeal to the Court of Appeal is also a possibility.
Public sector employers should therefore continue to tread warily when settling back-dated equal pay claims. In particular they would be well advised to scrutinise the information provided to workers prior to concluding a settlement, to make sure that they have been given adequate information about the value of their claims.
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