| Allen v GMB [2008] All ER (D) 207 (Jul)
The claimants were representatives of female employees of
the local authority. In 1997, a national collective agreement
(the green book) was negotiated between the relevant trade
unions and the local authority employers.
The intention was that the agreement should replace the various
sets of terms and conditions that had applied to different
categories of local government employees with a new set of
terms and conditions applying to grades one to six of all
the employees employed by local authorities, therefore creating
a system with a common pay and grading structure (single status).
The existing terms and conditions created some gender-based
pay inequalities. It was envisaged that actual pay scales
and pay rates would be devolved to local level and that local
agreements would be preceded by local job evaluation studies.
The local authority carried out a job evaluation study and
new terms and conditions reflecting it came into effect on
1 April 2005. The defendant trade union was one of the unions
which negotiated the new terms and conditions with the local
authority.
A complicating factor arose in that the local authority sought
an outcome that was affordable, whilst the defendant wanted
an outcome that compensated the victims of past inequality
but at the same time provided a measure of pay protection
for those who were disadvantaged by the job evaluation study
and maximised the amount available for future pay across the
board.
The defendant decided to give priority to those who needed
pay protection and to achieving better pay for the future
rather than to maximising claims for past unequal pay. An
agreement was reached between the local authority and the
defendant. That agreement provided that one category of female
employees would be provided with some compensation for the
historical inequalities, but failed to provide another category
of female employees with any such compensation.
The defendant recommended that its members accept the terms
of the agreement. The claimants presented a claim before the
employment tribunal alleging, inter alia, that the defendant
had indirectly discriminated against them contrary to the
Sex Discrimination Act 1975.
The tribunal upheld the claimants’ claim concluding that
by agreeing to a low back-payment settlement in order to release
more money for pay protection and the future pay line, the
defendant had engaged in a potentially discriminatory practice,
and that the disadvantaged group were predominantly female.
It found that the defendant had failed to protect the interests
of the claimants by not pursuing proceedings at an early stage;
that the defendant had deliberately omitted to give advice
about back pay and had refused to support litigation in order
not to antagonise the local authority; and that the defendant
had failed to give the claimants a fully informed choice about
the options available to them.
The tribunal went on to find that the practice in issue could
not be objectively justified and that what the defendant had
done was not a proportionate means of achieving a legitimate
aim.
The defendant successfully appealed against that decision
to the Employment Appeal Tribunal (EAT). The EAT found that
the tribunal had fallen into a fundamental error. It stated
that the confusion lay in the tribunal failing carefully to
analyse what was required to establish objective justification,
and that the question was whether the means to achieve the
objective were proportionate to that objective. Accordingly,
the defendant's appeal on indirect discrimination was allowed.
The claimants appealed against that decision.
They submitted that the decision of the tribunal should be
upheld since the defendant had failed to justify the agreement
that had been reached with the local authority; and that whilst
the defendant had been entitled to adopt the priorities that
it had, the means that had been adopted to achieve those priorities
had been disproportionate.
The appeal would be allowed.
Indirect discrimination arose when a person applied to a
woman a provision, criterion or practice (PCP) which he applied
or would apply equally to a man but which was such that it
would be to the detriment of a considerably larger proportion
of women than of men. The woman’s claim would succeed if the
person could not show the PCP to be justifiable irrespective
of the sex of the person to whom it was applied and she established
that it was to her detriment.
In the instant case, the PCP was the deal that had been done
with the local authority as a result of the single status
policy. The appropriate test was to ask whether the means
adopted by the defendant were proportionate to the attainment
of a legitimate aim.
The approach taken by the tribunal had been permissible and
correct. Having taken that approach, the tribunal had not
fallen into material legal error when it had concluded that
the means were disproportionate to the achievement of the
overall aim or aims. In all the circumstances, the tribunal
had not erred in law in its approach to the justification.
The EAT had been wrong to allow the defendant’s appeal on
indirect discrimination.
The decision of the tribunal on indirect discrimination would
be restored, and the case would be remitted to the tribunal
for a remedies hearing.
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