In Allen v GMB the Court of Appeal has held that the GMB indirectly discriminated against some 4,000 of its female members by agreeing a deal to resolve past and future claims which disadvantaged them disproportionately.
The Court of Appeal considered the GMB’s position in relation to its various groups of members with conflicting interests, restoring the employment tribunal’s original finding that the union had failed to give one group of employees a fully informed choice about the options available to them.
Prior to 1997 the terms and conditions applicable to local authority employees were set out in different documents for different categories of employees. Manual workers were governed by the White Book and administrative, professional, technical and clerical workers were governed by the Purple Book. It was acknowledged that some gender based inequalities had developed.
In 1997 a national collective agreement (the Green Book) was negotiated between the trade unions and local authority, aimed at bringing White and Purple Book employees together with a common pay and grading structure (single status). It was agreed that pay scales and rates would be devolved to local level and local agreements would be replaced by job evaluation studies (JES). In Middlesborough a JES was carried out and terms and conditions reflecting it (and negotiated by the GMB) came into effect on 1 April 2005.
Faced with conflicting pressures (compensating the victims of past inequality whilst affording pay protection for others) the union decided to give priority to pay protection and achieving equality for the future. Various disadvantaged White and Purple Book women brought claims against the union claiming its prioritisation was indirectly discriminatory.
The employment tribunal (ET) held that, by agreeing to a low back pay settlement to release more money for the future pay line, the union had engaged in a potentially discriminatory practice against women which it had failed to justify. The ET highlighted the following:
- The union had failed to protect the interests of claimants by not pursuing proceedings at an early stage
- The union had deliberately omitted to give advice about back pay
- The union had ‘rushed headlong’ into an ill considered back pay deal
- Crucially, the union had failed to give the claimants a fully informed choice about the options available to them.
In considering justification, the ET noted that the appropriate test was to ask whether the means adopted by the union were proportionate to the attainment of a legitimate aim. It found that the union kept employees in the dark, failed to give advice about back pay and manipulated ‘unsophisticated’ union members into accepting the offer. These means were not proportionate. The union appealed to the EAT, which held that the means used were proportionate. The Court of Appeal disagreed, restoring the tribunal’s decision and refusing leave to appeal further. The Court of Appeal found that the ET did not err in law in its approach to justification. It agreed that the aims of the union were legitimate (ultimately, to avoid privatisation, job losses, cuts in hours and to get the best possible pay protection). However, the union was not free ‘to procure the acceptance or acquiescence of members by a marked economy of truth in what it says and writes to them’.
The lesson to be taken is that, however worthy the aims, unions must take great care to ensure that their members (particularly those who are likely to be disadvantaged by any deal) are fully informed, particularly as to what rights they might be giving up. The Court of Appeal made clear that ‘misselling and manipulation’ cannot be proportionate to the attainment of a legitimate aim.
Further, unions which seek to uphold or promote arrangements which are inherently discriminatory, such as the use of seniority as a criterion to determine access to benefits or the application of decisions, may find themselves liable to their members if such arrangements cannot be justified.