Public sector pay equality in the courts: the story so far – Bronwyn McKenna - UNISON 1 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 2 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 3 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 4 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 5 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 6 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 7 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 8 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 9 Recent case law developments 2/2  Bainbridge v Redcar and Cleveland BC; Surtees v Middlesborough BC (CA) - council should have extended pay protection to women whose pay increased to the same level and for the same 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 there is no taint of discrimination e.g. restructuring  Allen v GMB (CA - no appeal to HL) - union has indirectly discriminated against members in 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 10 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 11 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 the publication of the results, - job evaluations to be non-discriminatory, and - a study on the possibility of fines for employers and possibly disqualification from benefits 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 12 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