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Equal pay – union in the dock

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The GMB has been found guilty of sex discrimination over an accusations of poor representation in an equal pay case.

Remedies have yet to be decided in the case but the media has speculated that the GMB could be forced to pay out more than £1 million in compensation.

The case concerns claims of inadequate representation when 150 women complained that Middlesbrough Borough Council’s bonus scheme allowed men to earn up to 40% more for doing work of equal value.

The union advised the women to accept a deal rather than taking legal action and the council amended its bonus scheme. The case is considered of such importance that both sides declared their intention to appeal the finding at the start of proceedings.

At the end of its 139-page judgment the tribunal said: “The union acting in Middlesbrough believed that the enforcement of the Equal Pay Act whether by litigation or not, would bring about what they saw as a doomsday scenario of cuts in jobs and services, privatisations, members being set against one another and industrial relations as they knew it collapsing.”

The tribunal points out that equal pay is the employer’s responsibility and the compulsory nature of the Act meant Middlesbrough Borough Council should have eradicated unequal pay years before.

But in acting as it did, the GMB collaborated with the council in such a way “that it applied practices which manipulated the members who had back pay claims into unwittingly sacrificing their claims to the benefit of other members and the council”. Although this was done with the best of intentions, the tribunal ruled it was indirect discrimination.

The tribunal also criticised the union for its attitude to those of its members who had decided to be represented by a solicitor, saying it had made them “pariahs” and portrayed them to the council and fellow union members as “self-centred money grabbers”.

The tribunal said the law had to balance union officials’ ability to set priorities with its duty to all its members. “A union is not free to disregard the rights of a sector of its members because it has different priorities.

“Still less is it free to procure the acceptance or acquiescence of those members by a marked economy of the truth in what it says and writes to them. We cannot accept that what the union did in this case was a proportionate means of achieving a legitimate aim.”

In a statement Brian Strutton, GMB national officer said: “GMB is very surprised at the Newcastle employment tribunal decision.

“GMB do not believe they have got it right and we intend to appeal. GMB has always been at the forefront of equal pay issues and are adamant that we have not discriminated against our members in Middlesbrough. GMB will challenge this decision and we are confident that we will be successful.

“The tribunal seems to have based their view on the grounds that unions shouldn’t negotiate but should always go to court. This may be all right for lawyers but in it is not in the real world of UK industrial relations.”

The difference this case may make to union negotiations over equal pay issues will not be clear until any appeal is settled.

But employers should consider whether any bonus payments they make are genuine productivity bonuses or whether they are considered to be part of the remuneration package. Bonuses which favour full-time employees could be considered discriminatory because the majority of part-time employees are female.

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