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Slide 1 - Equinet Europe by liuqingyan

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									 Collecting evidence and litigating
equal pay cases strategically in the
                UK

        Bronwyn McKenna
       Equinet Conference
       Bratislava, Slovakia
      11th - 12th October 2010
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        B McKenna, UNISON, Equinet 11th to 12th October 2010
            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                                         2


            B McKenna, UNISON, Equinet 11th to 12th October 2010
             UK Equal Pay legal
         and 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                                  3


              B McKenna, UNISON, Equinet 11th to 12th October 2010
    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
        Year                                Equal Pay Claims
        2004-5                              8,244
        2005-6                              17,268
        2006-7                              44,013
        2007-8                              62,706
        2008-9                              45,748
        2009-10                             37,400                       4


                  B McKenna, UNISON, Equinet 11th to 12th October 2010
   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
                                                                   5


            B McKenna, UNISON, Equinet 11th to 12th October 2010
      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                                 6


            B McKenna, UNISON, Equinet 11th to 12th October 2010
        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

                                                                       7


                B McKenna, UNISON, Equinet 11th to 12th October 2010
     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
                                                                     8


              B McKenna, UNISON, Equinet 11th to 12th October 2010
    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                        9


            B McKenna, UNISON, Equinet 11th to 12th October 2010
                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
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                    B McKenna, UNISON, Equinet 11th to 12th October 2010
             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
                                                                       1
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                B McKenna, UNISON, Equinet 11th to 12th October 2010
         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                1
  and cross examination of Council witnesses                         2
              B McKenna, UNISON, Equinet 11th to 12th October 2010
   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                                                             1
                                                                   3
            B McKenna, UNISON, Equinet 11th to 12th October 2010
    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                                              1
                                                                    4
             B McKenna, UNISON, Equinet 11th to 12th October 2010
   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
                                                                      1
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               B McKenna, UNISON, Equinet 11th to 12th October 2010
  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                                               1
                                                                      6
               B McKenna, UNISON, Equinet 11th to 12th October 2010

								
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