April 4 2008: Disaster averted? GMB v Allen

Few court cases recently have caused as much anxiety for trade unionists as the recent case of GMB v Allen, which was heard in the Employment Appeal Tribunal (EAT) in February, with the decision appearing at the end of July. Like many recent high-profile employment cases, it was an equal pay claim. What distinguished the case was that the claimants argued that the main cause of their unequal pay was not their employer – but their union.
One factor in the growing number of equal pay cases, which are currently a quarter of all new tribunal claims, has been the single status agreement for local authorities, concluded nationally in 1997 for local adoption by April of this year.
Male workers in manual trades have been particularly badly hit. Often, in the past, such workers were able to win allowances for late hours or anti-social conditions. Where their bonuses were threatened, as they were periodically in the 1970s and 1980s, they defended them by strikes. In a context of weakened organisation, pay simplification has meant pay cuts.
The other groups of losers have been female workers such as cleaners, learning assistants, school caterers: expecting single status to result in the levelling up of their salaries to match those of male craft workers, they have in fact found their salaries increased only modestly, with little compensation for past pay inequality.
In GMB v Allen, the union concerned did not develop a strategy to campaign for a general increase in wages, nor did it make any attempt to calculate how much back pay any gainers from single status might be entitled to receive. The union saw itself as faced with insoluble problems and responded by refusing to take any decisions at all.
Once the council had tabled proposals, the union rushed to accept them. In particular, the proposed agreement would meant that women workers would be required to sacrifice any potential equal pay claims, in return for only a very small proportion of any potential gain. The union positively misrepresented the arrangement to its members.
The women's representative Stefan Cross is a former Thompsons solicitor, who was described by the Financial Times as "a thorn in the side of many union officials". Cross helped a group of women GMB members to bring a claim against the union.
At the employment tribunal, the union was found to have discriminated against the women concerned. It was ordered to pay them compensation. Cross estimated the total value of their claim to be more than £1 million. Many more claims of that sort, and even a union the size of the GMB would have been faced with extinction.
On the GMB's appeal to the EAT, however, the decision was reversed. The women lost. One discussion list for employment lawyers spoke of champagne corks popping at union HQs. Any serious response, however is likely to be more equivocal, for a number of reasons.
First, although the GMB won on appeal, it is likely that the case will be appealed further. The EAT found for the union, on the grounds that although it was said to have lied to its members, this deceit was not unlawful. It gave the equivalent example of an employer A faced with two workers, B who is a man and is paid more, and C, who is a woman and paid less. If C asks for equal pay, and the employer lies to her, saying that she is paid the same as B, then (the tribunal argued) she has no cause of action, provided that the unequal pay can be justified on some other grounds. By itself, the deceit creates no action.
But in the example the EAT gave, C has lost out: because on learning (wrongly) that she has the same pay as B, she is unlikely to continue with her claim. She has lost an opportunity, and that opportunity (even if it might ultimately have been unsuccessful) has a value. The same logic applies to the workers in GMB v Allen: when the union lied to them about the value of the deal on offer, it made it less likely that its women members would demand that the deal was renegotiated. It is hard to see then how the EAT's decision could be defended on appeal.
Second, even if there is no appeal, the tribunal's decision in GMB v Allen has undoubtedly made it easier for other claimants to bring cases against unions, for example where a union has failed to represent its members properly, or where it has sold a proposed agreement to its members on a false basis. It will also presumably make it easier for dissatisfied members to bring claims against individual representatives. I doubt that any union is doing enough, even now, to train or support reps in what are increasingly complex areas of the law.
Third, unions still have not addressed fully one of the main tactical question that lay behind the decision: namely what should a union do when an employer introduces an equal pay scheme that means more pay for women and less for men? Many trade unionists' position seems to be that protecting workers against pay-cuts is more important than pay equality.
I can see justifications for that position. After all, if an employer is able to turn on any significant group of workers, and cut their pay sharply, then no other worker can be confident in their position. But the opposite argument also applies with equal force: where there are historic pay divisions between men and women, and they are identified publicly, and where a union goes on to acquiesce in their continuation, that union has allowed inequality to fester, and in such circumstances the employer will find it easy to keep the workforce divided.
Fourth, there are also the criticisms made by the tribunal of a culture of institutional lethargy. The issue of equal pay had been there for reps and officials to see for at least a decade. As the need for a decision approached, the union was paralysed, ceding all initiative to management. The result, ultimately, was a legal case against the union.
The "advantages" of such a culture of lethargy will be familiar to anyone who has seen the inside of a union office. Apathy occurs when lay structures are weakest. But not everyone loses from that situation. If you disable the activists, inevitably the full-timers become more important. An official's word will have more impact on management. But allow the process to continue too long, and the union structure itself will rot. Members will tend to see the union as little more than legal insurance. Cheaper competitors will emerge, as Stefan Cross has in the North East. First they will take the members, then the members will sue the union.
What the GMB should have done, evidently, is campaign against the high salaries pervasive among council managers, using the single status negotiations as an opportunity to reorder the pay structure in favour of lower-paid grades. Such tactics could have resulted in both pay protection and equal pay. They would have required however a seismic shift of tactics at the top of the union away from the partnership model, and an equally drastic shift of power downwards from the top to the union rank and file.