B McKenna, UNISON, Equinet 11th to 12th October 2010 Collecting evidence and litigating equal pay cases strategically in the UK Bronwyn McKenna Equinet Conference Bratislava, Slovakia 11 th - 12 th October

B McKenna, UNISON, Equinet 11th to 12th October 2010 Areas covered UK Equal Pay legal framework Volume and scope of Equal Pay litigation in UK Features of UK equal pay litigation Barriers to pursuing strategic litigation Case studies –Armstrong v Newcastle NHS Trust [2006] IRLR 124 –Barker v Birmingham City Council UKEAT 0447/09/LA Evidence gathering tools 2

B McKenna, UNISON, Equinet 11th to 12th October 2010 UK Equal Pay legal and enforcement framework Equal Pay Act 1970 & now Equality Act 2010 from October 2010 Equality clause – contractual model Individual complaints enforcement model Separate equal value process using independent experts Employment Tribunals – Employment Judge and 2 non legal members Costs free regime at first instance Separate legal systems – Scotland, England and Wales and N. Ireland Fault lines between UK and EU law 3

Volume of EP litigation in the UK 95,000 claims in the Employment Tribunals 60 plus appeals to the Employment Appeal Tribunal 13 appeals to the Court of Appeal First case to the Supreme Court 2011 B McKenna, UNISON, Equinet 11th to 12th October 2010 YearEqual Pay Claims , , , , , ,400 4

B McKenna, UNISON, Equinet 11th to 12th October 2010 Reasons underlying equal pay claims explosion Fallout from collective bargaining developments Removal of cap on back pay compensation - Mrs B Levez and Mrs M I Hicking v T H Jennings (Harlow Pools) Ltd, Basford Group Ltd (in receivership) EAT/311/99 Role of contingency fee lawyers Concentration on public sector to date 5

B McKenna, UNISON, Equinet 11th to 12th October 2010 Characteristics of equal pay litigation in the UK 1/2 Large numbers of individual claims bundled into multiple Nature of respondents – fragmentation of public sector Political cycle in local authorities High value - £20 million to £200 million per multiple Technical/ jurisdictional points 6

Characteristics of equal pay litigation in the UK 2/2 Frequent appeals Concurrent appeals within Scotland and E&W systems Shortage of independent experts for EV cases Limited pool of legal advisors and representatives Cases >10 years and counting Article 6 arguments – Allen & Others v Carmarthenshire County Council Cardiff ET December 2010 B McKenna, UNISON, Equinet 11th to 12th October

Barriers to pursuing strategic litigation 1/2 Procedural rules Wide discretion in case management Resistance to test case approach – respondents and judiciary Availability of technical arguments No - costs regime – no sanctions for conduct Limited co-ordination of appeals Separate legal systems within UK 8

B McKenna, UNISON, Equinet 11th to 12th October 2010 Barriers to pursuing strategic litigation 2/2 UK emphasis on individual contractual rights Cases proceeding on old law Difficulty of choosing right facts Order in which issues are determined i.e. GMF vs. equivalence EHRC played limited role/poor linkage with unions Big picture plays on all parties minds 9

B McKenna, UNISON, Equinet 11th to 12th October 2010 Case Study 1 Armstrong v. Newcastle NHS Trust 300 claims lodged 2000 concerning events late 1980s preliminary point took 8 years to resolve successful ET December 2003 employers' appeal to EAT succeeded November 2004 cross appeals to Court of Appeal December 2005 & decision largely in favour of employer case reconsidered by ET in December 2007 and decided in claimants' favour employers' unsuccessful appeal to EAT February 2009 UNISON appealed to EAT in October 2009 employers' unsuccessful application for leave to Court of Appeal September 2010 case before ET for third time in December 2010 now < 160 claimants 10

Case Study 2 Barker v Birmingham City Council 1/2 3,000 claims started test cases 18 day hearing with 46 witnesses documents displayed electronically on equipment loaned by employer employer already paid £120m in equal pay compensation Council passed motion 2007 noting pay system especially bonuses to male workers did not comply with equal pay law B McKenna, UNISON, Equinet 11th to 12th October

Case Study 2 Barker v Birmingham City Council 2/2 evidence covered national and local pay policy from 1967 onwards documents many years old union witnesses included claimants representing each work group evidence council no longer monitored terms on which bonuses payable union evidence based on interpretation of documents and cross examination of Council witnesses B McKenna, UNISON, Equinet 11th to 12th October

Union organisation –Union spans the entire UK –information held by union –current and retired officials –support of comparators Equal pay questionnaires of limited value Tribunal power to order disclosure – too late Tools for collecting evidence 1/3 13

Tools for collecting evidence 2/3 s. 181 TULR(C)A1992 Disclosure of information for collective bargaining purposes test – withholding impede collective bargaining/ disclosure in accordance with good industrial relations practice complaint to Central Arbitration Committee information may be used for ancillary purpose – Lake and Elliot Founders and Engineers Ltd v ASTMS CAC Award 86/3 B McKenna, UNISON, Equinet 11th to 12th October

Tools for collecting evidence 3/3 Freedom of Information Act 2000 Right to request information from public body Exemptions –Data Protection –Claim of confidentiality in legal proceedings –Cost of providing information > £600 Decision 184/2007 O Connor of UNISON and Glasgow CC Held – external equal pay audit of councils pay system was prepared for legal proceedings and therefore protected by legal privilege B McKenna, UNISON, Equinet 11th to 12th October

Observations on strategic litigation works as theory rather than practice in mass claims often happenstance which cases come to fore and can be progressed to work requires judicial power and will all parties' co-operation e.g. agreeing to be bound by outcome in lead case early identification of preliminary issues ability to expedite/ stay cases costs sanctions B McKenna, UNISON, Equinet 11th to 12th October