Equal to the task

In Paying a Heavy Price, Kim Howell recently wrote on Local Government Lawyer about the current state of equal pay law in the UK and called for the government to initiate a review of the legislation. Ben Patrick of UNISON responds to some of the points she made.

In her recent article, Kim Howell made a number of claims about the current state of equal pay law. While UNISON agrees with her that a review of the UK’s equal pay legislation is well overdue, we believe that the reasons advanced in her article are not supported by the current case law or legislation.

Ms Howell uses the recent employment tribunal decision at Birmingham City Council as an example of what is wrong with equal pay law but she fails to properly acknowledge the shifting legal framework and has consequently reached some startling conclusions.

First, she suggests that equal pay cases are “notoriously fact sensitive”. It is clear from UNISON’s experience of bringing tens of thousands of equal pay claims against local government employers that it is the same groups of female workers (for example carers, cleaners and school catering staff) that are seeking to compare themselves to the same groups of male comparators (refuse collectors, gardeners, street sweepers) who enjoyed the same types of bonuses and which were not paid to female worker groups.

Further, our experience has been that local government employers have to a large extent raised the same material factor defences in each of the 45,000 equal pay cases we are currently running in the UK. Indeed Lady Justice Smith, a Court of Appeal judge who has sat in many local authority equal pay cases, commented in open court in a recent case involving bonuses that she considered that many of the local government mass equal pay claims were virtually indistinguishable on their facts.

Ms Howell uses the Sheffield City Council litigation to support her thesis but unfortunately is wrong in suggesting that this local authority was successful in defending those claims. The Sheffield tribunal decision was overturned by the Court of Appeal in February this year (Gibson v Sheffield City Council [2010] IRLR 277). The Gibson decision was unreservedly applied by the employment tribunal in dismissing the various employer’s material factor defences in the Birmingham case.

Second, Ms Howell’s suggestion that it is somehow wrong that equal pay claimants should be able to let their claims “lie dormant for decades” shows a lack of awareness of current domestic and indeed international legal developments.

One of the first acts of United States President Barack Obama’s term was to pass federal legislation dealing with this precise issue – overruling the United States Supreme Court decision in Ledbetter v Goodyear Tire & Rubber Co (2007) 550 US 618. This case had held that the 180 day time limit under Title VII of the United States’ Civil Rights Act 1964 and the United States Federal Equal Pay Act 1963 (giving plaintiffs the right to equal pay) ran from the date of the first breach of the requirement to pay equal pay, notwithstanding it was some years, indeed decades after this date that the plaintiff, Mrs Lilly Ledbetter, first learnt of this earlier breach and that she was in fact being paid less for her work because she was a woman by which time she was well outside time to have her claim accepted.

In the UK, the Equal Pay Act has been in force for 35 years yet government statistics show that in recent years the gender pay gap has started to widen. Much of this discrimination is a result of employers refusing to properly confront issues of inequality in pay despite knowing about it for decades. Is Ms Howell seriously suggesting that employers should be able to avoid the law and escape facing legitimate claims simply because low paid female workers are not fully aware of the potential claims they might have or have not within three months of commencing their employment found out about such potential claims and brought employment tribunal proceedings? If so, this I suggest is quite out of touch with reality and indeed international thinking.

Third, Ms Howell expresses an apparently common view of local government legal advisors in suggesting that it should be trade unions that are held responsible for remedying sex discrimination in pay. The Equal Pay Act has rightly placed the onus on employers to remedy discriminatory differences in pay because it is only employers who have the ability to do so.

Many employers have sought to shift responsibility for their legal responsibilities to unions – most notably Coventry City Council. In the case of Nichols v Coventry City Council [2009] IRLR 345 this defence was roundly defeated in the EAT and the Court of Appeal refused to accept an appeal from that finding. Despite that clear decision, is Ms Howell suggesting that liability for remedying historical discriminatory pay practices continue to be shouldered by the claimants’ lawful representatives and not the entity that actually employs and pays them?

To create such a system would turn on its head fundamental principles that underpin all manner of anti-discrimination employment legislation; namely that it is can only be for employers to remedy such discrimination that occurs within their enterprises. The suggestion calls into question the very basis of much anti-discrimination law and is again one which is out of keeping with established law and modern jurisprudential thinking.

Fourth, Ms Howell’s complaint that the Birmingham decision signals a worrisome departure from current law in respect of establishing prima facie case of indirect discrimination on the basis of statistics alone again misrepresents current equal pay law. It is perfectly acceptable for courts and tribunals to find disparate adverse impact in pay (thereby shifting the burden to the employer to objectively justify such indirect discrimination) simply on the basis of statistics so long as those statistics are significant, and not purely fortuitous or short-term phenomena.

This principle has been in place in UK law for decades, indeed this has been well settled since the European Court of Justice decided the UK case of Enderby v Frenchay Health Authority [1994] ICR 112. To suggest too that the gender composition of female-dominated work groups is motivated by “personal choice” and not by virtue of the fact that work such as part-time school catering and after hours cleaning and caring work is often the only work that women can take in their communities given their child-minding responsibilities is frankly insulting.

Fifth, Ms Howell concludes by stating that the Equality Act 2010 has done little to change equal pay law save a “few tweaks”. However, the precise issue that she takes issue with in her article, namely the ability of employers to mount “material factor defences” to equal pay claims, has been changed significantly.

Section 69 of the Equality Act now requires employers to objectively justify every instance where equal pay claimants have established a prima facie case of indirect discrimination in pay. This was not the case under the Equal Pay Act as cases like Armstrong v Newcastle upon Tyne Hospitals NHS Trust [2006] IRLR 124 and Gibson showed – these decisions allow employers to avoid the need to justify discriminatory pay by pointing to other reasons for the differences in pay.

These legislative amendments bring UK equal pay law up to date and much more closely align it to the requirements of the European Court of Justice decisions. It is expected that these amendments, promoted by UNISON, the Equality and Human Rights Commission and the Fawcett Society will do much to speed up progress to equality in pay and lessen the number of spurious defences that have been advanced by employers under the old Equal Pay Act – including by local government employers.

Ben Patrick is a solicitor at UNISON Legal Services.

Click here to read Geldards’ own response.