Public sector pay equality in the courts: the story so far – Bronwyn McKenna - UNISON

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Public sector pay equality in the courts: the story so far

Bronwyn McKenna

3 December 2008

The Institute of Employment Rights Women at Work: 90 years since the

Representation of the People Act 1918

Public sector pay equality in the courts: the story so far – Bronwyn McKenna - UNISON

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Overview of presentation State of equal pay law in the UK Features of public sector equal pay litigation Recent case law developments Equality Bill-cause for optimism or grounds for despair? EU developments

Public sector pay equality in the courts: the story so far – Bronwyn McKenna - UNISON

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State of UK equal pay law

legislation creaking addresses equal pay not discrimination in pay model of individual enforcement not collective redress inadequate implementation of EU law

- scope of material factor defence

- hypothetical comparator

potential of statutory Gender Equality Duty in achieving equal pay

Public sector pay equality in the courts: the story so far – Bronwyn McKenna - UNISON

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Scope to use GED to secure equal pay 1/2

General duties directly enforceable by judicial review by trade unions and the Equality and Human Rights Commission

S76(1) SDA

- public authority must have due regard to the need to eliminate unlawful discrimination and harassment; and promote equality of opportunity between men and women

Public sector pay equality in the courts: the story so far – Bronwyn McKenna - UNISON

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Scope to use GED to secure equal pay 2/2 s76B + s76C SDA public authorities are required to publish a gender equality scheme to consider the need to have objectives that address the causes of any

difference between the pay of men and women that are related to their sex

to collect and assess information on the effect of policies and practices on male and female staff

(Indirect requirement to carry out pay audits?) to consult stakeholders including trade unions as well as employees to assess the impact of its policies and practices on gender equality to conduct reviews of gender equality scheme scope to use GED in equal pay claims?

-to obtain information in EPQs-to highlight inequalities -pleadings in case

Public sector pay equality in the courts: the story so far – Bronwyn McKenna - UNISON

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Features of public sector equal pay litigation

• availability and high cost of expert legal advice• listing of multi week hearings• ET case management powers• evidence going back over many years• law in uncertain state leading to unpredictable

decisions• incidence of appeals• lack of control and therefore high risk• role of No Win No Fee Lawyers

Public sector pay equality in the courts: the story so far – Bronwyn McKenna - UNISON

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Case study – Joss and ors. v Cumbria County Council

largest equal pay multiple claims commenced in 2001 bulk of claims supported by UNISON and GMB new claims still being added strands running in Court of Appeal, EAT and ET

concurrently

Public sector pay equality in the courts: the story so far – Bronwyn McKenna - UNISON

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Recent case law developments 1/2 Bewley v Walton Neurological Centre (EAT)

- validity of comparison with comparator not

employed for whole 6 year period

Hovell v Ashford & St Peters NHS Trust (EAT)- what is the legal status of

a job evaluation

exercise which places a claimant and comparator

in same band? Hurst v Suffolk Mental Health Trust (EAT)

- compliance with grievance process

Gutridge v Sodexho (EAT)- does TUPE trigger time?

Public sector pay equality in the courts: the story so far – Bronwyn McKenna - UNISON

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Recent case law developments 2/2 Bainbridge v Redcar and Cleveland BC; Surtees v Middlesborough BC (CA)

- council should have extended pay protectionto women whose pay increased to the same level and for thesame period as the protected men - protection not unlawful but circumstances in which it can be justified are extremely restricted - does not limit use of protection in circumstances where thereis no taint of discrimination e.g. restructuring

Allen v GMB (CA - no appeal to HL)- union has indirectly discriminated against membersin negotiations but scope of PCP is unclear from judgment- uncertain territory for negotiators

Public sector pay equality in the courts: the story so far – Bronwyn McKenna - UNISON

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Equality Bill-cause for optimism or grounds for despair? DLR-legislation may place “burden on

employers, particularly smaller employers” differential standards in public and private

sector e.g. pay audits no legislative measures proposed on

hypothetical comparator procurement proposals lacking in detail power for ETs to make recommendations in

equal pay cases?

Public sector pay equality in the courts: the story so far – Bronwyn McKenna - UNISON

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EU developments EC review of equal pay law summer 2008

European Parliament call in November 2008 for proposed revisions to existing legislation by end 2009, in particular for;- obligatory and regular pay audits and thepublication of the results,- job evaluations to be non-discriminatory, and- a study on the possibility of fines foremployers and possibly disqualification frombenefits or subsidies for those workplaces with poor scores on pay equality

Public sector pay equality in the courts: the story so far – Bronwyn McKenna - UNISON

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Public sector pay equality in the courts: the story so far

Bronwyn McKenna

3 December 2008

The Institute of Employment Rights Women at Work: 90 years since the

Representation of the People Act 1918