Collecting evidence and litigating equal pay cases strategically in the UK

1. Collecting evidence and litigating equal pay cases strategically in the UK Bronwyn McKenna Equinet Conference Bratislava, Slovakia 11th - 12th October 2010 B McKenna, UNISON, Equinet 11th to 12th October 2010

2. Areas covered • UK Equal Pay legal framework • Volume and scope of Equal Pay litigation in UK • Features of UK equal pay litigation • Barriers to pursuing strategic litigation • Case studies • Armstrong v Newcastle NHS Trust [2006] IRLR 124 • Barker v Birmingham City Council UKEAT 0447/09/LA • Evidence gathering tools B McKenna, UNISON, Equinet 11th to 12th October 2010

3. UK Equal Pay legaland enforcement framework • Equal Pay Act 1970 & now Equality Act 2010 from October 2010 • Equality clause – contractual model • Individual complaints enforcement model • Separate equal value process using independent experts • Employment Tribunals – Employment Judge and 2 non legal members • Costs free regime at first instance • Separate legal systems – Scotland, England and Wales and N. Ireland • Fault lines between UK and EU law B McKenna, UNISON, Equinet 11th to 12th October 2010

4. Volume of EP litigation in the UK • 95,000 claims in the Employment Tribunals • 60 plus appeals to the Employment Appeal Tribunal • 13 appeals to the Court of Appeal • First case to the Supreme Court 2011 B McKenna, UNISON, Equinet 11th to 12th October 2010

5. Reasons underlying equal pay claims explosion • Fallout from collective bargaining developments • Removal of cap on back pay compensation - Mrs B Levez and Mrs M I Hicking v T H Jennings (Harlow Pools) Ltd, Basford Group Ltd (in receivership) EAT/311/99 • Role of contingency fee lawyers • Concentration on public sector to date B McKenna, UNISON, Equinet 11th to 12th October 2010

6. Characteristics of equal pay litigation in the UK 1/2 • Large numbers of individual claims bundled into multiple • Nature of respondents – fragmentation of public sector • Political cycle in local authorities • High value - £20 million to £200 million per multiple • Technical/ jurisdictional points B McKenna, UNISON, Equinet 11th to 12th October 2010

7. Characteristics of equal pay litigation in the UK 2/2 • Frequent appeals • Concurrent appeals within Scotland and E&W systems • Shortage of independent experts for EV cases • Limited pool of legal advisors and representatives • Cases >10 years and counting • Article 6 arguments – Allen & Others v Carmarthenshire County Council Cardiff ET December 2010 B McKenna, UNISON, Equinet 11th to 12th October 2010

8. Barriers to pursuing strategic litigation 1/2 • Procedural rules • Wide discretion in case management • Resistance to test case approach – respondents and judiciary • Availability of technical arguments • No - costs regime – no sanctions for conduct • Limited co-ordination of appeals • Separate legal systems within UK B McKenna, UNISON, Equinet 11th to 12th October 2010

9. Barriers to pursuing strategic litigation 2/2 • UK emphasis on individual contractual rights • Cases proceeding on old law • Difficulty of choosing right facts • Order in which issues are determined i.e. GMF vs. equivalence • EHRC played limited role/poor linkage with unions • “Big picture” plays on all parties’ minds B McKenna, UNISON, Equinet 11th to 12th October 2010

10. Case Study 1 Armstrong v. Newcastle NHS Trust • 300 claims lodged 2000 concerning events late 1980s • preliminary point took 8 years to resolve • successful ET December 2003 • employers' appeal to EAT succeeded November 2004 • cross appeals to Court of Appeal December 2005 & decision largely in favour of employer • case reconsidered by ET in December 2007 and decided in claimants' favour • employers' unsuccessful appeal to EAT February 2009 • UNISON appealed to EAT in October 2009 • employers' unsuccessful application for leave to Court of Appeal September 2010 • case before ET for third time in December 2010 • now < 160 claimants B McKenna, UNISON, Equinet 11th to 12th October 2010

11. Case Study 2 Barker v Birmingham City Council 1/2 • 3,000 claims started 2006 • 46 test cases • 18 day hearing with 46 witnesses • documents displayed electronically on equipment loaned by employer • employer already paid £120m in equal pay compensation • Council passed motion 2007 noting pay system especially bonuses to male workers did not comply with equal pay law B McKenna, UNISON, Equinet 11th to 12th October 2010

12. Case Study 2 Barker v Birmingham City Council 2/2 • evidence covered national and local pay policy from 1967 onwards • documents many years old • union witnesses included claimants representing each work group • evidence council no longer monitored terms on which bonuses payable • union evidence based on interpretation of documents and cross examination of Council witnesses B McKenna, UNISON, Equinet 11th to 12th October 2010

13. Tools for collecting evidence 1/3 • Union organisation • Union spans the entire UK • information held by union • current and retired officials • support of comparators • Equal pay questionnaires of limited value • Tribunal power to order disclosure – too late B McKenna, UNISON, Equinet 11th to 12th October 2010

14. Tools for collecting evidence 2/3 • s. 181 TULR(C)A1992 Disclosure of information for collective bargaining purposes  • test – withholding impede collective bargaining/ disclosure in accordance with good industrial relations practice • complaint to Central Arbitration Committee • information may be used for ancillary purpose – Lake and Elliot Founders and Engineers Ltd v ASTMS CAC Award 86/3 B McKenna, UNISON, Equinet 11th to 12th October 2010

15. Tools for collecting evidence 3/3 • Freedom of Information Act 2000 • Right to request information from public body • Exemptions • Data Protection • Claim of confidentiality in legal proceedings • Cost of providing information > £600 • Decision 184/2007 O’ Connor of UNISON and Glasgow CC • Held – external equal pay audit of council’s pay system was prepared for legal proceedings and therefore protected by legal privilege B McKenna, UNISON, Equinet 11th to 12th October 2010

16. Observations on strategic litigation • works as theory rather than practice in mass claims often happenstance which cases come to fore and can be progressed • to work requires • judicial power and will • all parties' co-operation e.g. agreeing to be bound by outcome in lead case • early identification of preliminary issues • ability to expedite/ stay cases • costs sanctions B McKenna, UNISON, Equinet 11th to 12th October 2010