The GMB encouraged a group of female staff at Middlesbrough Borough Council to accept a settlement for equal pay claims relating to back pay that they believed they were entitled to when compared with a group of predominantly male employees. The GMB feared that, if the claims were successful and ate into the council’s resources, a threat could be posed to pay protection for employees who could be downgraded under the move towards single status. The union also did not want to put negotiations for pay rises for all its members at risk.

The female staff accepted a settlement for their equal pay claims, receiving what was later estimated by an employment tribunal to be 25% of the full potential of the claims. Some of the women brought a claim for sex discrimination against the union on the grounds that it had sacrificed their interests in favour of the interests of other groups of members.

The case raises some interesting points about conflicting trade union loyalties.

On the one hand, unions clearly have a duty to represent the interests of all of their members and have a limited budget with which to achieve this. They have to make decisions about which causes to pursue and which to back down on. It is anathema to a union to agree to have anything taken away from any of its members and here it decided that pay protection for downgraded staff was the more pressing matter, and it was worried as well about scuppering negotiations for pay rises for all staff.

On the other hand, a trade union is prohibited by sex discrimination legislation from discriminating against a female member ‘in the way that it affords her access to any benefits, facilities or services . . . or by subjecting her to any other detriment’. And if there is one issue that a union representing local government employees can not afford to a show antipathy towards, it is surely equal pay.

In overturning the employment tribunal decision, the EAT held that the union’s actions in this case could be objectively justified as a proportionate response to a legitimate aim.

The GMB has called the decision a ‘victory for common sense’ and it will now argue that similar cases should be withdrawn following the successful appeal. It was believed that the compensation payable by the GMB would have been in excess of £1m.

The Times and BBC websites have more on the decision. Read the full transcript of the case (Microsoft Word format, 151K) on the EAT website.