The Court of Appeal has issued its decision in the long running case of Allen v GMB, finding that the GMB discriminated against some of its female members by recommending that they accept equal pay settlements which were up to 25% less than they might have received from a tribunal.

The facts

Following a job evaluation study at Middlesbrough City Council, the GMB recommended that female members accept the Council's offer to settle their equal pay claims at 25% of their value (without informing them that what they were being offered was substantially less than they might receive following successful litigation). There was no assessment of the litigation risk nor was any external advice obtained. The employees were told that if they pressed for more it might lead to job losses and to their being seen as traitors by their colleagues. The GMB acted as it did because it wanted to protect the wider interests of its members, in particular to ensure pay protection for downgraded employees going forward.

Five test claimants argued that the manner in which the GMB had dealt with their equal pay claims discriminated against them on the grounds of sex.

The decision

The Court of Appeal found that the GMB had indirectly discriminated on the grounds of sex. The union's policy of prioritising pay protection over securing back pay had a disproportionate adverse effect on women. The methods used to secure the acceptance of the deal on back pay - which involved withholding information and manipulation - meant that the policy could not be justified as a proportionate means of achieving a legitimate aim.

What next?

Unless the GMB successfully appeals to the House of Lords, it will have to compensate around 4000 members as a result of this decision. Unison is also facing around 7000 similar claims.

Allen and others v GMB 2008 EWCA 810