EQUAL PAY
Commission calls for practical approach to equal pay crisis following landmark judgement
In what has been described as a landmark judgment, the Court of Appeal has accepted the Equality and Human Rights Commission's call for a practical approach to help resolve a surge in equal pay cases threatening to bring the tribunal system to a grinding halt.
The judgment, which was made on 29 July 2008, sets a “far-reaching precedent,” says the Commission. It comes as figures reveal equal pay claims for local authority and NHS staff have continued to rise.
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Women in the public sector working in jobs such as dinner ladies and cleaners have long been underpaid for doing work of equal value with their male counterparts. The Commission intervened in the case of Bainbridge v. Redcar and Cleveland Borough Council to clarify the best way to bring women's pay in line with men's as speedily as possible, while also taking into account the financial impact faced by the public sector.
Transitional arrangements
The Commission argued that so called “transitional arrangements” - when an employer protects the pay of an existing employee, most often men, while taking steps to equalise pay - could be lawful.
In some circumstances, the Commission believes such arrangements may be a practical and necessary intermediate step, provided the employer consults the women involved, tackles the matter as quickly as possible and in a way that disadvantages the women to the least extent possible.
The Court of Appeal accepted the substance of the Commission’s argument, “setting an important precedent that will help pave the way for a faster resolution to the deepening quagmire of equal pay in local government,” says the Commission. The ruling means that, whenever possible, cases can be kept out of a slow and costly legal system in favour of negotiated settlements that brings women and local councils some measure of certainty sooner, rather than later.
John Wadham, Legal Group Director at the Equality and Human Rights Commission, said: “The quagmire of equal pay in local government needs to be ended now, and the thousands of women involved deserve money in their pockets now - not in another ten years’ time.”
He added: “There is no simple solution. But it may not always be possible to deliver change overnight. Practical and fair transitional arrangements are necessary but it is right that we set a strict test for when these arrangements can be justified. Without them, employers may simply turn a blind eye to the problem until forced by a slow and overburdened legal system to deliver. Litigation is not enough. We need other tools to deliver change, including negotiated settlements.”
Surge in equal pay claims
Largely driven by claims brought by women working in local government, the number of equal pay claims lodged in tribunal have spiralled in the last year. Figures from the tribunals service showed a 155% increase over the past year, with claims now topping 44,000.
Commission analysts estimate that the total number could rise to over 150,000 in coming years, placing a considerable stress on the tribunal system and resulting in further delays for thousands of women, many of whom have already been waiting for over a decade.
Bainbridge case
The Bainbridge case involved 800 women, who largely worked as care and catering workers. They had been fighting for equal pay with their male colleagues in a case that has now gone on for more than four years.
The Commission could not support the Bainbridge claimants directly, as the thrust of their legal argument was that such transitional arrangements should never be lawful. Without the option of practical and reasonable solutions such as transitional arrangements, the Commission was concerned that employers would avoid taking active steps to uncover pay differences and setting things right for fear they wouldn't have the resources to address the differences immediately.
The court drew tight parameters around the circumstances where such “transitional arrangements” could be justified. On the basis of the facts in the case in Bainbridge, the Court ruled that the justifications put forward by the councils in question did not meet the test, and the claimants in the case were successful.
However, the claimants were not successful on the basis of their original argument that such arrangements were in themselves unlawful, but that the arrangements in these circumstances could not be sufficiently justified.
Commission intervenes
In January 2008, the Commission announced that it would not support the claimants in the Bainbridge case directly. Instead, the Commission applied to “intervene” in the case, in the interest of making arguments to the court to clarify the law on the issue of transitional arrangement - and set a precedent that could help deliver equal pay faster.
The Commission was concerned a precedent in this case could take away the freedom of unions, employers and employees to negotiate sensible, workable solutions that could help keep these claims out of an increasingly over-burdened tribunal system.
Want to know more
The Equality and Human Rights Commission is a statutory body established under the Equality Act 2006, which took over the responsibilities of Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission. The Commission is the independent advocate for equality and human rights in Britain. It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights.
To find out more visit www.equalityhumanrights.com.