Are litigation and collective bargaining complements or substitutes for achieving gender equality? A study of the British Equal Pay Act

Abstract

We present a socio-legal case study of the recent equal pay litigation wave in Britain, which saw an unprecedented increase in the number of claims, triggered in part by the entry of no-win, no-fee law firms into this part of the legal services market. Although the rise in litigation led to greater adversarialism in pay bargaining, litigation and collective bargaining mostly operated as complementary mechanisms in advancing an equality agenda. Although there are limits to the effectiveness of law-driven strategies in the face of organisational pressures to canalise and diffuse human rights, litigation may be a more potent force for social change than some recent accounts have suggested.

When trade unions turn to litigation: ‘getting all the ducks in a row’

“…The growth reflects a general trend towards increased legal intervention in employment relations, which can also be observed in other countries (Pélisse, ; Willemez, ). However, the complicated and strategic judicialisation witnessed in the UK is remarkable particularly in certain areas of law such as discrimination (Deakin et al ., ; Guillaume, , ). Also significant are the use of European law and the tactic of grouping complaints as a way of raising legal awareness and building strong case law.…”

“…The volume of multiple claims has remained more volatile and over time less sensitive to fees, as it is often claims supported by unions that bear the associated costs. Some types of claims, such as those related to pay inequality, have fallen since the major litigation period of 2007–08 (Guillaume, , ; Deakin et al ., ) but remain at fairly high levels (17,000 in 2015–16). The same applies to claims related to the Working Time Directive (36,813 in 2015–16).…”

“…As a result, dispute resolution has become individualised (Colling, ; Dickens and Hall, ) and trade unions have been displaced from their traditional role (O'Sullivan et al ., ). Other research has considered the prospect of ‘recombinant legal strategies’ to enforce employment rights (Colling, ) where a collective use of the courts, such as in the case of multiple equal pay claims, can act as a substitute for or complement to collective bargaining (Deakin et al ., ; Guillaume, , ). However, whether individual or collective, litigation strategies remain hazardous, with limited chances of success (Renton, ).…”

Mobilising for equality? Understanding the impact of grass roots agency and third party representation

“…Through the 1990s, British councils were vulnerable to equal pay cases arising from historical agreements with unions that inflated male pay with bonus schemes that were not available to women (Deakin et al ., ). Equal pay claims were growing and proving expensive, prompting councils and unions to seek new agreements that would unify the pay structures of different groups of workers through job evaluation exercises.…”

“…Much has already been written about local authority problems with equal pay (Deakin et al ., ; Perkins and White, ), and the GCC case is well known, with large amounts of information available for public scrutiny. The founders of litigation specialists, Action 4 Equality Scotland (A4ES)—Mark Irvine (a senior ex‐UNISON official) and Stefan Cross (an employment lawyer, ex‐union activist and Labour councillor with a track record of representing council workers in England)—had a major impact on this case, signing large numbers of GCC women to ‘no‐win‐no‐fee’ legal representation.…”