A judgement in the Appeal Court this month upheld all the substantive elements of a case brought against the GMB union by a group of women workers in Middlesbrough. The GMB were found to have “indirectly discriminated” against these women in order to pursue a “Single Status Agreement” deal with the local council that focused on future pay and pay protection. The union ignored their right to significant amounts of back pay. The GMB now want to appeal to the House of Lords as they potentially face large financial penalties as the women’s lawyers pursue their case.
Some commentators have claimed that the ruling ends union collective bargaining and ”trade unionism as we know it” — undermining the union’s right to come to terms with an employer.
Definitely not. The ruling is quite limited and specific in its finding. It says the union used “disproportionate means” to settle the deal. In any case most rank and file trade unionists and ordinary union representatives will be horrified by the detail of how the GMB officers acted.
According to the records of the original employment tribunal (ET) and employment appeal tribunal (EAT) the union did the following:
• The union focused on future pay and reducing potential losses through pay protection and “rushed headlong into accepting an ill-considered back pay deal accepting the Council’s plea of poverty without question…”
• They failed to inform women members of their rights to back pay and instead used that entitlement as a bargaining chip with the employers for a general deal without the consent or knowledge of the women involved.
• They failed to lodge the members claims promptly and in some cases not at all, so limiting the compensation that could have been expected.
• No advice was given to the women about their legal entitlements and “the union deliberately omitted to give this advice and refused to support litigation because … it did not want to ‘rock the boat’ and offend the Council so that progression to single status would be delayed or impeded.”
The GMB’s actions is a startling example of “business unionism” where the trade union trades its member’s interests for a deal benefiting the union hierarchy but not necessarily the members. It’s the kind of unionism that is now rampant across the UK where, for example, recognition deals may be won on the basis of not pursuing past malpractice and at the cost of the legal rights of some workers to compensation.
In this view of the world the continued existence and growth of the trade union is all and the well being of members a secondary consideration at best.
Whilst it’s clear that the Middlesbrough women were right to complain about this behaviour it’s telling that they had to do it through the agency of a No Win, No Fee solicitor and that there was no obvious way for them to protest inside the union or, more shamefully, no one inside appeared willing to speak up on their behalf.
Even a good trade union may have to make deals in which there are winners and losers but only after proper consultation with the members. Legal entitlements and rights should only be negotiated over with their informed consent. The high handed manner of the officials in this case towards a group of women workers will be familiar to many trade unionists.
Although the Tribunals and Court didn’t find the GMB guilty of direct sex discrimination in this case the initial “indirect discrimination” was upheld. Indirect discrimination against a woman occurs if a person “applies to her a provision, criterion or practice which he applies or would apply equally to a man, but —
(i) which is such that it would be to the detriment of a considerably larger proportion of women than of men;
(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied; and
(iii) which is to her detriment.”
In this case prioritising future pay left more women as losers because their legal right to back pay wasn’t fought for as compared to their male counterparts.
Press reports suggest that the women who received anything got only a quarter of what they might expect to get.
The GMB seem fairly unrepentant in their press release and are seeking a House of Lords ruling to clarify the best way of balancing the conflict between collective needs and individual rights.
Whilst that goes ahead many other cases are on hold against both employers and other trade unions. Again the motivation seems to be protecting the union rather than prioritising the interests of the workers. The GMB want to limit their legal liability.
Socialists and feminists will be more concerned about the political liabilities of a union that seems to have learned little from the experience and perhaps very little from three decades of relative progress for women. That a union went out of its way to exclude the interests of low paid women members and felt it could do so in the name of benefitting the greater good demands political not just legal answers.
Equal Pay has been both one of the best campaigns run by the unions, and in turn became one of the most disgraceful. Early victories won large amounts of compensation but attempts to generalise them led quickly to compromises. The whole approach of the trade unions towards resolving this historic injustice in Local Government started with a compromise accepting that each of the single status deals would be locally negotiated with no new funding meant ongoing inequalities would be there from the start.
Dependence on tactics such as going to the courts rather than national collective action to achieve a settlement from central government that would fund fully the entitlements of women workers discriminated against for years was not considered. The trade unions seems to have missed the point that the law gives women workers a right to this money, it’s not something for negotiation without their explicit agreement and informed consent.
Thompsons, the solicitors who are handling equal pay cases on behalf of the major trade unions are clear about what the entitlement is: if a claimant is successful, they will be entitled to:
• an equality clause in their contract of employment, that will secure the same pay as their comparator into the future;
• Back pay from the date of lodging the tribunal application to the date of the equality clause affecting the contract up to a maximum of six years (five years in Scotland) running from the date that the tribunal application is lodged (except in pension cases);
• Interest on back pay.
The trade unions say they have to responsible and not risk pressing for the full claim because of the risk of job losses and service cuts. The obvious answer to this should be to demand the funding of claims directly and centrally through taxation — taxation of the rich. Why is there a reluctance to fight for the funding of equal pay?
It’s tied into the general attitude that unions are there to work in partnership with employers, meaning that nearly always the more marginalised, less organised members of the union will suffer most as they potentially have the most to gain. Women in the unions suffer from both the legacy of long term discrimination in the workplace with the low pay and poor conditions that were deemed to be a “woman’s lot” and the pragmatic business unionism of today where “we all have to be reasonable”.
So the ideals and vision of early trade unionism, that saw no limits in the law and prejudice in fighting for what was right, never mind the cost, has been all but lost. Key to it was always the idea of solidarity — the stronger would help the weaker. That ultimately all workers, men and women alike, have a common interest in the struggle against capitalist exploitation.
The reluctance to make equal pay a collective struggle and leave it to be resolved as individual or small group actions has opened the door to the legal parasites that women workers must now, it seems, have to turn to for their rights to be obtained. These No Win, No Fee lawyers are of course also Big Win, Big Fee lawyers. Large chunks of back pay and compensation are still being lost by many women.
The threat to the “future of trade unionism as we know it” lies not in the details of this ruling but the consensus view of what trade unionism should be. Trade unions endanger their own future by focusing on providing services and benefits — such as insurance — things for which capitalism will always provide competitors who can do it better and cheaper.
A return to the founding principles of trade unionism, militant campaigning against injustices at work and society challenging the power of capitalism and oppression is needed.
It seems that women workers such as the cleaners on the London underground are the ones taking up that legacy of struggle at present. Faced with the limitations of the present trade unions and their increased vulnerabilities in a low paid flexible labour market, where wages and pensions are being squeezed by the credit crunch, we can expect many other women workers to join them.
We need to get away from the idea that “proper” trade unionism involves the concerns of male workers and “the struggle” is all about fighting the police (although in times of extremity that is necessary). There is a sort of machismo behind the attitudes of the GMB — it was more important to protect the interests of mainly male workers like refuse collectors, who have “industrial muscle”, at the cost of the rights of women workers. The law may call it “indirect discrimination” but the lived experience of the Middlesborough women and many other women — including activists and officials in the unions — is that sexism still exists inside our ranks.
Some unions have made moves to boost the representation of women. Unison have specifically attempted to get the representation of low paid women in their structures. However, to root out the ideas of the past and change them for the future, we still need to do much more.
An understanding of the roots of unequal pay in sexism and discrimination would help inform the struggle that’s needed to overcome it and challenge the ideas that perpetuate in our own ranks. We need to re-found the labour movement as an instrument of class struggle. The collective need for a historic settlement of the injustices against women workers should be one of the priority political demands of the trade unions. Socialist feminists will be in the forefront of that movement, creating a movement and society in which sexism no longer has a place.
• All quotes, unless otherwise referenced come from the judgement which can be read online: