Local government – Discrimination – Equal pay – Legitimate aim – Proportionality – Trade unions

Allen & Ors v GMB (2008): CA (Civ Div) (Lords Justice Tuckey, Smith, Maurice Kay): 16 July 2008

The appellant union members (X) appealed against a decision ([2007] IRLR 752) rejecting their claim of indirect sex discrimination against the respondent trade union (G).

X worked for a local authority. The terms and conditions of thousands of local authority employees were to be replaced with new terms under a national collective agreement designed to eradicate pay inequalities. G negotiated with X’s employer for a pay deal to compensate the victims of past inequality, provide pay protection for those disadvantaged by the new terms and increase future pay. In the course of its negotiations, G decided to give priority to pay protection and better pay for the future, rather than claims for past unequal pay. In the resulting pay deal, X received either no compensation or only 25% of the full value of their equal pay claims. X’s claim for indirect sex discrimination against G succeeded in the employment tribunal, which found that while G’s aim had been legitimate, the means it had employed to achieve it were disproportionate. The tribunal found that G had deliberately omitted to provide X with advice on back pay and had manipulated X into accepting the pay deal by providing alarmist information about possible job losses. The Employment Appeal Tribunal (EAT) overturned the tribunal’s decision and found that G had established objective justification. X submitted that, although G had been entitled to adopt the priorities it did, the means used to achieve those priorities were disproportionate.

Held: Indirect discrimination arose when a person applied to a woman a provision, criterion or practice which he applied or would apply to a man but which was such that it would be to the detriment of a considerably larger proportion of women than of men. A claim would succeed if the person could not show that the provision, ­criterion or practice was justifiable, irrespective of sex, and it was to the claimant’s detriment. The provision, ­criterion or practice applied to X was the deal that was done with the local authority as a result of G’s policy of striking a balance between back pay, future pay and the need for protection. The appropriate test was to ask whether the means adopted by G were proportionate to the attainment of a legitimate aim. The central question was whether the manipulation found by the tribunal could be characterised as the means of the attainment of G’s legitimate aim. The EAT had identified the means as, in effect, the balance that was struck in the deal with the local authority. However, that gave too narrow an ambit to the concept of ‘means’. A number of different actions could each be part, and a necessary but not equal part, of the means of achieving the aim. Steps taken by G to persuade X and others to accept sacrifices, including forbearance from litigation, were part of the means by which the achievement of the aim was pursued. The tribunal’s conclusion that the provision, criterion or practice involved persuading X to make sacrifices was correct. The ­tribunal had not fallen into error when it concluded that the means were ­disproportionate to the achievement of the overall aim. Although G’s ­objective was a legitimate one, it was not the only possible legitimate one. If it was achievable only by ­disproportionate means then it was not susceptible to justification. To ­conclude otherwise would be to license disproportionality. The ­tribunal’s decision on indirect ­discrimination was restored and the case remitted to the tribunal for a remedies hearing.

Appeal allowed.

Andrew Stafford QC, Chris Quinn (instructed by Stefan Cross) for the appellants; John Cavanagh QC, Jason Galbraith-Marten (instructed by Thompsons) for the respondent.