Discriminatory equal pay deals can be justified
The House of Lords’ decision to refuse leave to appeal in Allen v GMB on 28 Decemeber 2008, should not deter “careful unions” from pursuing discriminatory equal pay deals in future negotiations.
The GMB union wanted to appeal against a Court of Appeal ruling that it had indirectly discriminated against female union members by recommending acceptance of a “single status” pay deal. This recommendation was said to have grossly underestimated any compensation that would have been due to female equal pay claimants. The Court of Appeal ruled that, while the objective of the deal was
legitimate, the union had not used proportionate means to secure it.
Sian Reeves, pupil barrister, at 1 Temple Gardens, says that although it is inevitable that the decision will encourage disgruntled female workers to bring discrimination claims against their union, it may not be the end of the story.
“The decision establishes that in principle, discriminatory pay-protection deals are capable of being justified. It is the unusually strong and adverse findings of fact against the GMB that led to a fi nding of unjustifi ed discrimination. Unions that have advised the potentiallosers to pay-protection deals thoroughly of the rights they are sacrifi cing, misled or unduly pressurised such members into consenting, have nothing to fear after Allen”. She adds that many of the discrimination claims that have been pending on this decision may be outside the limitation of action. “Further litigation will undoubtedly follow to determine whether this new development in the law is such as to make it just andequitable to extend time, in view of the public policy considerations and potentially high stakes involved.”
