Although discrepancies in pay in the negotiation of a ‘single status’ deal for local authority employee might be ‘justified’ under the SDA, the fact that the deal was mis-sold by the union to female employees who thus lost the right to claim for historic pay inequality meant that ‘disproportionate means’ had been used and so there had been unlawful discrimination.
In Allen v GMB the Court of Appeal has allowed the claimant employees' appeal.
In negotiating a 'single status' pay structure for all local authority employees, the union wanted to achieve pay protection for those who would lose out financially under the new deal and achieve equality/better pay for the future rather than compensate female employees for former inequalities in their pay.
The original employment tribunal considered that this was discrimination.
The EAT allowed the GMB's appeal - the union had been justified in their actions by their overall aim.
The Court of Appeal has now re-instated the original tribunal judgment.
IIn this case there was evidence that the union had 'mis-sold' the overall package to the women who would be adversely affected and this amounted to a disproportionate means of achieving what might have been a justifiable aim and so was discriminatory.
Point to note –
In a collective bargaining situation, pay protection for some employees - which may be necessary in order to manage changes in pay structures - may not necessarily succeed as a justification defence to an equal pay claim brought by other employees who have lost out financially as a result. The GMB union is appealing this decision to the House of Lords to seek clarification of how individual employee’s rights should be balanced against collective rights in such a case. We shall keep you informed of developments.