The long running saga of GMB v Allen is nearly over. The Court of Appeal issued its decision that the GMB did indirectly discriminate against some of their female members, by recommending acceptance of pay settlements which were significantly less than they could achieve in a Tribunal. With leave to appeal to the House of Lords refused, this case could mean that both the GMB and Unison will face huge compensation payments.
This decision will also have ramifications for public sector employers who are negotiating with union officials over back pay deals. More litigation is inevitable as union officials become wary of recommending settlements.
To recap...
GMB v Allen involved claims against the GMB that they had pressurised their members into accepting reduced levels of back pay in order to protect the wider interests of all their members. The union argued that they had to balance the interests of all their members by providing pay protection and avoid pushing the Council too hard for fear of redundancies, or privatisation. In some cases the settlements were rated at 25% of the full value of the claim.
When this issue came before the Employment Tribunal back in June 2006, they decided that the union's "ill considered" policy indirectly discriminated against its female members. They then went on to consider whether the discriminatory policy could be justified as a proportionate means of achieving a legitimate aim, which they answered in the negative.
Discriminatory but was it justified?
Essentially, the Tribunal decided that the union's policy of protecting the wider interests of all their members was a legitimate aim, but the way in which the union had arrived at that aim was not proportionate.
The Tribunal were very critical of the lack of proper disclosure by the union to its members to enable them to make an informed choice about the back pay deal. In particular, the Tribunal referred to the union's refusal to support litigation, their rush to accept an "ill-considered back pay deal, accepting the Council's plea of poverty without question" and the manipulation and pressure which was exerted upon the claimants by using "alarmist information".
"Misselling and manipulation" was not a proportionate means ...
Although the EAT accepted the union's argument, the Court of Appeal has now reversed that decision, agreeing with the Employment Tribunal that the "misselling and manipulation" was not a proportionate way to achieve a legitimate objective.
What happens now?
Unless the unions directly petition the House of Lords then they are believed to face compensation payments from 4000 members of the GMB and 7000 from Unison. The BBC has previously reported that the total claims against the GMB alone may amount to one million pounds.
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