Allen & Ors v GMB

In indirect discrimination, the provision, criterion or practice must be identified with precision and justified as a whole. A negotiated deal or policy allocating limited funds can itself be a PCP. The means of pursuing a legitimate aim may include steps taken to persuade disadvantaged members to surrender or forgo statutory claims. Misleading or manipulative persuasion can therefore make the means disproportionate, even where the aim is legitimate. The tribunal must assess the impact of the particular PCP, rather than the overall winners and losers under a wider scheme. Compensating advantages are ordinarily relevant to justification, not disparate impact. Proportionality requires the tribunal’s own fair and detailed assessment.

Local authority employees were moved from separate White Book and Purple Book arrangements to a Green Book single-status system. The respondent trade union negotiated terms which gave White Book women limited back pay, none to Purple Book women, and prioritised pay protection and future pay.

The Employment Tribunal rejected direct discrimination but upheld indirect discrimination and victimisation. The Employment Appeal Tribunal allowed the union’s appeal on justification and on victimisation. The central issue before the Court of Appeal was whether the negotiated practice, including the way members were persuaded to accept it, formed part of the means requiring justification.

1. The appeal was allowed. Maurice Kay LJ, with Smith and Tuckey LJJ agreeing, restored the Employment Tribunal’s finding of indirect discrimination and remitted the matter for a remedies hearing.

2. Under section 1(2)(b) of the Sex Discrimination Act 1975, the PCP itself must be identified and justified. The PCP was the deal reached with Middlesborough, resulting from the union’s policy of balancing back pay against pay protection and future pay. A negotiated balance can be a PCP applied to members; it is not merely conduct which affects them. The failure of the direct discrimination claim did not prevent the same conduct from constituting a PCP for indirect discrimination.

3. The concept of means is not inherently narrow. Where the policy assumes that disadvantaged members will sacrifice or forbear from enforcing perceived statutory rights, the steps used to secure that result, including persuasion and its manner, may form part of the means. The Employment Tribunal was therefore entitled to treat the union’s misselling and manipulation as part of the means of achieving its legitimate aims.

4. The union established legitimate aims, including achieving single status, avoiding privatisation and job losses, minimising losers and securing pay protection. Those aims did not make every means proportionate. If an aim could be achieved only by disproportionate means, it was not susceptible to justification. The Employment Tribunal’s findings about withholding information, discouraging litigation and alarmist communications supported its conclusion that the means were disproportionate. A hypothetical contention that the same outcome might have occurred without manipulation concerned remedy rather than liability.

5. The disparate-impact inquiry concerned the effect of the particular union policy. Potential benefits from pay protection or improved future pay were mitigating features relevant to justification, not a reason to redefine the disadvantaged group. Trade unions fall within the statutory indirect-discrimination regime, and the difficulty of reconciling competing membership interests did not alter that conclusion.

6. The Employment Tribunal was required to make its own fair and detailed judgment on proportionality, taking account of reasonable operational considerations. It was not confined to asking whether the union’s view fell within a range of reasonable views, consistently with Hardy & Hansons PLC v Lax [2005] EWCA Civ 846. Minor criticisms of the Tribunal’s reasoning did not amount to a material error of law.

1. Court of Appeal (Civil Division): Allowed the appeal, restored the Employment Tribunal’s finding of indirect discrimination and remitted the case for a remedies hearing.
2. Employment Appeal Tribunal: Allowed the union’s appeal on justification in the indirect-discrimination claim and on victimisation.
3. Employment Tribunal: Rejected direct discrimination but upheld indirect discrimination and victimisation.