Changing the rules will boost equal pay claims

Recent publicity surrounding a claim by approximately 1,500 female hospital workers in North Cumbria should prompt managers to reassess the risk that current pay structures may have created, and address any imbalances. No doubt lawyers will come in for a certain amount of criticism for the expense this may cause, but they cannot be blamed for creating the inequality.

Back in 1997, solicitors first lodged a tribunal claim on behalf of a group of female hospital workers. They argued their work was of equal value to a range of jobs carried out by men who got paid, in some cases, a lot more than they did.

The precise size of the claim is currently unclear. Union officials from Unison said the settlement would be worth £300m. Meanwhile, the NHS trust has put the figure at £60m. 

Whatever the outcome, substantial sums will be involved. The claim concerns inequalities of pay that can be backdated six years.

Any detached observer considering the degree of inequality that has been proved to exist in this case – and the amount of time it has taken to resolve the situation – will conclude that there is a lot that is wrong with the legal system in the UK. But it is not alone. Pay differentials between men and women have stubbornly survived throughout Europe, despite decades of equal pay legislation.

Yet there has been a decline in the number of cases brought to tribunals. As barrister, James Laddie of Matrix Chambers pointed out in a recent talk to the Employment Lawyers Association, there were 8,762 equal pay claims presented in 2001-2002. In 2003-2004 claims equalled just 4,412. In Cumbria alone, only 12 tribunal applications surrounding equal pay claims were made.

This decline is surprising, but employers should take care not to become complacent. Adopting such an attitude could prove a costly mistake.
There are three main reasons why fewer equal pay cases are being brought to tribunal:

  • Unrepresented workers may be unaware of their rights
  • There may be a great deal of pressure brought to bear on interested parties not to litigate
  • Individual cases may concern amounts of money that are too small to justify the expense of litigation.

It is, of course, unacceptable for unjustified differentials to be propped up by inadequate laws. However, the following factors indicate that this situation is changing.

First, the successful cases generate an enormous amount of publicity and this can inspire claims in other sectors. Unison, for example, is widely reported as having used the success it has so far achieved in the NHS to produce similar claims in the local government sector, and to pressurise employers to adjust their pay scales.

Second, legal changes – namely the rules relating to the burden of proof – have made it easier for employees to win discrimination cases. In addition, the new employment tribunal rules, which came into effect in October 2004, have specifically addressed one of the major causes for delay in equal value claims, namely the appointment and management of an independent expert.

These new rules have attempted to clear away many of the procedural problems that have existed in the past, with a view to avoiding the delays that made equal pay cases notorious.

Third, there is reason to believe that legal practitioners will be more willing to take equal pay cases on a ‘no-win no-fee’ basis in the future, as they have realised that unequal pay seems to be endemic.

There are many sectors where workers are unrepresented and unaware of their entitlements. Changing the rules on bringing claims will make it easier for them to succeed.

Stephen Levinson is, Solicitor, Employment Lawyers Association

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