Single status, multiple claims

In this issue, we report the case of Clarke v Redcar, which considers the validity of Acas settlements dealing with large-scale equal pay claims. The case arises in the context of local government seeking to implement the Single Status Agreement - abandoning the old distinction between manual and administrative staff and moving towards a coherent and consistent approach to pay for all employees. The problem is that such an exercise throws up serious pay discrepancies, which often have their roots in historical bargaining procedures that saw men as breadwinners and women as secondary earners, with the result that traditional male roles were better rewarded.

This clearly gives rise to potential claims for equal pay, and it is here that the interests and priorities of those engaged in collective bargaining diverge from those who see the issue in employment law terms. A union may see the achievement of single status as a significant step on the way to fair pay for all its members. In order to achieve that goal the union may, therefore, be keen to draw a line under past inequalities and concentrate on moving forward. However, an employment lawyer will see things completely differently. Disadvantaged female employees have an immediate legal right to pay equality with their male comparators, as well as a right to recover back-pay for up to six years.

The government has provided no increased funding for local authorities to cope with the equal pay implications of implementing single status. The result is that those involved in the process are faced with a dilemma: do they direct their resources to compensating employees for past inequalities or do they concentrate on reaching a fair deal for all employees? A trade union, which owes a duty to all its members, may answer that question differently from a lawyer who owes a duty only to his or her client.

Step forward Stefan Cross, a solicitor who felt that workers in the public sector were essentially being encouraged to accept deals that fell far short of what they could be expected to win in an employment tribunal. Cross has been referred to as having "the face that launched a thousand claims". By now, that is a serious understatement. Throughout the country, employees have turned their back on their union's approach to negotiation and lodged equal pay claims instead. The scale of this can be judged from the newly published employment tribunal statistics for 2005/06, which show that the number of equal pay claims lodged has risen from 8,229 in 2004/05 to a staggering 17,268. With thousands more women in the public sector estimated to have possible claims, similar figures or higher may be expected next year. The financial implications of this development are simply huge.

An employment tribunal held recently that the GMB indirectly discriminated against a number of female members - now represented by Cross - in the way in which it sought a deal on single status¹. The tribunal held that the union had neglected the interests of female claimants in order to protect the interests of employees in the traditional male roles. An appeal to the EAT is likely, but this case has already sent shockwaves around local government. Unions across the country now feel vulnerable to discrimination claims if they are too cooperative with an employer's plans for implementing single status, or if they drag their feet over resolving issues of inequality and back-pay.

If unions feel they must approach negotiations with an employment lawyer's attitude, settlements will be few and expensive, and protracted litigation will ensue. Cross cannot be faulted for pressing the interests of his clients - that is his duty. However, forcing unions to take a similar approach may turn out to have a seriously damaging effect, not only on industrial relations but also on the state of the public finances.

¹See Conciliation agreements: Validity of Acas-conciliated agreements upheld for more.

perspective@irsonline.co.uk