UK: Unions Discrimination Case

Last Updated: 7 August 2008
Article by Darren Sherborne

In an interesting development the GMB Union has lost in the Court of Appeal after a member pursued the Union for Indirect Sex Discrimination.

The Union was discussing a pay deal where they had to balance years where women members had been paid less than men for doing equal value work with the interests of all workers going forward securing pay for all members.

The Union accepted that the Council in question had limited finance and put paid protection for all staff whose jobs had been downgraded to the top of their list while allowing the backdating of pay for women who had been underpaid to go to the bottom of the list.

Where the Union appear to have fallen down is in persuading members to vote for the deal, they effectively misled their members and understated the amounts that would be available to the female members who had equal pay claims. They also failed to point out that members would receive considerably more money through litigation than they would by accepting the pay deal.

The Court of Appeal appeared to have concluded that this misleading and misrepresentation could not be a "proportion" means, although the aim was accepted as being legitimate. In the circumstances the Union lost and the case has been remitted to Tribunal for an assessment for financial damages.

I have to say this case is being described as a bad day for Unions but it would seem to be a bad day for industrial relations across the board. I think that this judgement is bad for Unions not because they have suffered the indignity of a loss against one of their members for sex discrimination, but because the officials are found to have misled their members and acted against the best interests of their female members.

Faced with a difficult decision it would seem that the full time officials of the GMB simply made the wrong choice and I am left wondering if they had favoured the back paid claims of equal pay for their women members, the Union would have been exposed to a claim of indirect sex discrimination by their male members who did not receive the pay award or the pay protection on being downgraded that they could otherwise have received.

The case is also a bad day for employers. Here the Union appears to have attempted to act in accordance with the plurality of the situation by accepting that the public authority had limited finances. Indeed the Union appears to have conducted their negotiations in the spirit of striking a balance.

It is not going to assist good employer/Union relations where Unions feel that they can not do this and, indeed, if the Union had acted how the Court of Appeal implies it should have done, then the Council would have faced legal action from an undetermined number of employees for back pay as well as potential industrial action from those being downgraded.

While one could argue that the Council should not have paid unequally in the past (and it is not clear whether they did or they did not), in any event, this decision cannot foster good working relations between Unions and employer.

The full, mind bending judgement can be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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