Paying the right price

Ben Patrick of UNISON recently took exception to part of Kim Howell’s analysis of the state of equal pay law in the UK. In this latest contribution, she stands her ground and explains how employers and unions need to work in partnership and seek solutions.

Unison contend that our article shows a lack of awareness of domestic and indeed international legal developments. We say it is precisely these legal developments that cause us such serious concerns about the way equal pay law has developed and will develop. This causes us to call for a radical review and overhaul of equal pay law in order to restore a sense of proportionality and facilitate resolution of the historic problem that could otherwise cause hundreds of millions of pounds to be spent by local authorities at a time when frontline services and public sector jobs are already under unprecedented threat.

Unison suggest that we have expressed the view that trade unions should be held responsible for remedying sex discrimination. Nowhere have we said that or could it be reasonably implied. What we do say is that local authority employers and trade unions both had a role in devising and introducing the bonus arrangements that are the source of the pay gaps that underpin this mass equal pay litigation. In that regard we make no criticism of the role the trade unions have played in this arena. Indeed, even the courts have repeatedly recognised that the nature of the work associated with most of the predominantly female occupations renders them unsuitable for participation in productivity bonus schemes (save for cleaning and sometimes catering) whereas that was clearly not the case in relation to the predominantly male occupations which have been the subject of bonus productivity arrangements for decades. Disparate impact was equally evident when those arrangements were introduced and it must be a concern that arrangements that were introduced on that joint basis (and regularly revised thereafter) should now be regarded by the trade unions as so indefensible.

Unison challenges our suggestion that equal pay cases are fact sensitive. They rely on their experience of bringing thousands of claims on behalf of the same groups of female workers, namely carers, cleaners and school catering staff. We would say that whilst the litigation initially pursued by no-win no-fee lawyers focused heavily on this group of predominantly female workers, the litigation which the trade unions are supporting involves a considerably broader claimant job population with many authorities facing large numbers of claims from administrative, professional and clerical staff. Further, each authority has its own story to tell in relation to how the various bonus-earning occupational groups were restructured to achieve the productivity improvements and financial savings that were a precondition of bonus payments.

When we identified the Sheffield City Council litigation to support our contention that these cases are fact sensitive and held to be defensible last year we were referring to the decisions in the Employment Tribunal and Employment Appeal Tribunal in that litigation. At each of those stages the bonus arrangements were, in the main, held to be defensible. It was not until February this year that those decisions were overturned by the Court of Appeal. We would say that that U-turn serves to illustrate the unpredictability of the law in this area and hence the justification for employers to pursue material factor defences, especially as the stakes are otherwise so prohibitively costly.

Unison’s comments in relation to our commentary on the Birmingham decision and disparate impact on predominantly female occupational groups shows a misunderstanding of the point we are making, perhaps due to our failure to illustrate our point more fully. We do not dispute that courts may find disparate adverse impact on the basis of statistics so long as those statistics are significant. Our concern in relation to the Birmingham case is that the statistics illustrate the reverse in that indirect discrimination was assumed on the basis of statistics despite the fact that five of the claimant groups were predominantly male, namely meals on wheels, school crossing patrols, assistant caretakers, site managers and technicians which comprised of 39%, 43%, 38.46%, 26% and 45.32% females respectively.

Unison contend that it is insulting to suggest that employees exercise personal choice in selecting occupations in this day and age. They suggest that, on the contrary, work in part-time school catering, after-hours cleaning and caring work is often the only work that women can take in their communities given child-minding responsibilities. In our article we set out a number of important developments in the employment protection of female workers which we believe has been successful in broadening the choice of female work. We also believe that the explosion in opportunities in the 24/7 retail sector has introduced greater choice and flexibility in the workplace. However, Unison’s contention in this regard fails to acknowledge statistical evidence which shows the age profile in the public sector as heavily dominated by older workers and hence we are not convinced that the link with occupational choice and child-minding responsibilities that often underpins presumptions of indirect sex discrimination can validly be made.

The union contends that our suggestion that it is somehow wrong that claimants should be able to let their claims lie dormant for decades shows a lack of awareness of legal developments. They refer to a case in the United States in which a female employee learned that she was being paid less than a male comparator, because she was a woman, decades after the breach first occurred, by which time she was out of time to pursue her claim. Our concern is not in relation to those cases where pay gaps have been concealed but in relation to pay gaps which arose out of joint employer and trade union arrangements, have been open and transparent from the outset and yet can be actioned decades later. We say it is in no-one’s interest for any source of complaint to lie dormant for this period of time. It delays the claimant’s remedy and in this area of law can make the remedy so unaffordable that it becomes incapable of resolution on a commercial settlement basis. Hence we see no justification for treating equal pay claims any differently from all other employment protection claims which are subject to short limitation periods, usually three months from the date of breach or awareness of breach, as the case may be.

In conclusion, we have not suggested and do not suggest that trade unions should be held responsible for remedying sex discrimination in pay. We are conscious that others, such as some no-win no-fee lawyers, have previously thought to hold the unions responsible for the role they have played in pay negotiations over the years. That is not our objective. Our objective is for the joint role in the design and application of pay arrangements over the years to be acknowledged as a factor that mitigates against an assumption of sex discrimination on the part of employers and for a legal framework that recognises the true reality surrounding the historic pay arrangements based on the different nature of the work associated with the various occupational groups rather than simply gender composition. It must be a concern for everyone that public sector jobs are so under threat, particularly when many public sector work forces are predominantly female. It has never been more important, therefore, to devise a proportionate and affordable means of resolving historic pay issues in order to avoid further destabilising the finances and sustainability of our public sector. The trade unions have a vital and never more important role to play working in partnership with employers.

Kim Howell is head of the public sector employment team at Geldards (www.geldards.com). She can be contacted through This email address is being protected from spambots. You need JavaScript enabled to view it..

Her original article can be read here.