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Ahead of our TUC fringe event next week on Fair Pay leading commentator Kathryn Perera has written for our blog on the issue.
Employment tribunals can no longer cope with the burden of multiple equal pay claims. By working with trade unions, the system can achieve a much-needed overhaul.
Figures showing the number and types of employment claims brought in 2009/10 have been published by the Tribunals Service. They are a sobering read. In the space of one year, the number of employment tribunal claims has risen by 56%. This is a significant increase when compared with other tribunal systems. You might be forgiven for assuming that the rise is duly mainly to the recession, with more rushed processes, more dismissals, more economic gloom. Not so.
The major culprits are the series of cases known as “multiple claims”. These arise when a number of individual claimants lodge separate claims arising out of the same or similar factual circumstances. During the litigation process, a tribunal then takes the decision to consider all the separate cases together as ‘multiple claims’. Multiple claims have almost doubled in the past year alone. They now account for three-fifths of the outstanding caseload of the Tribunals Service. And the majority of multiple claims are claims for equal pay.
Tens of thousands are lodged every year, often by women employed by the same employer in the same or similar roles. As such, these often become multiple claims during the litigation process, even though each and every one has to be lodged separately, at great cost and wasted energy for individuals, respondents and trade unions.
In many cases, several hearings are required to argue over preliminary points. A Tribunal may even list several hearings to debate whether a number of claims are, in fact, ‘multiple claims’ or not. For the legal system, the unfortunate result is a growing backlog of cases. In 2009-10, the Employment Tribunals Service disposed of 20,100 equal pay claims. But in the same period, it lodged 37,400 new equal pay claims. This trend is unsustainable. Meanwhile for individual claimants and their trade union representatives the delays are stressful, expensive and deeply frustrating. In my four years practising as an employment-law barrister, many women simply gave up before the substance of their equal pay claim was heard.
We need to get real about equal pay. A relatively simple first step would be to allow trade unions to bring a single claim as a ‘representative action’. By this means, a trade union acting for a group of women could advance one legal case, the outcome of which would apply to the whole group. This approach makes sense. It reduces the burden and risk of stigmatisation on individuals. It also reduces the risk of arbitrary results, because potential settlements could be agreed to apply allrelevant workers rather than those individual women who persisted in their claims.
Another obvious winner would be the public purse. The requirement for numerous women who are in the same boat to bring individual claims causes needless expense. That expense applies to claimants, trade unions, the respondents (many of whom are public authorities) and, of course, the public Tribunals Service as well.
Introducing ‘representative action’ won’t solve the pay-gap. But it will mark an important step to addressing the flaws in the litigation process. Crucially, it will also recognise the central role trade unions play in helping women to claim equal pay. In combination with other fundamental steps – a higher minimum wage; mandatory pay audits; improved flexible working – representative action can make a real difference to our creaking system. It’s often said that justice delayed is justice denied. For our equal pay litigation system, the time for practical action has come.
Kathryn Perera has practised at the bar in employment and education law. She is a writer and edits a Labour women’s history blog, www.sheblogs.co.uk. Kathryn stood as Labour's parliamentary candidate in Aylesbury at the 2010 election, and is an elected trustee of the Fawcett Society.
Unions 21 does not have policy but publishes opinion blogs from authors to stimulate debate. For more information email dwhittle@atl.org.uk.
