Neil Rose’s news article on class actions in employment tribunal claims (see [2009] Gazette, 6 August, 2) highlighted an important problem that affects many thousands of claimants in equal pay tribunal claims.

Employment tribunals in the UK are currently inundated with equal pay claims and they are struggling to keep up. In 2006-07, the number of such cases lodged in employment tribunals in Britain rose by 155% in one year, with multiple cases making up 60% of tribunal claims received. This situation is set to continue, with the volume of new claims to tribunals more than tripling in 2007-08 to 60,000. The number of claims has increased tenfold in the last five years – the bulk of these being multiple claims.

UNISON represents around 45,000 claimants in equal pay claims nationally and this number is growing. Most of these cases emanate from systemic pay discrimination, which affects defined groups of workers often numbering in their hundreds or even thousands. Each applicant has to ‘individualise’ their claim from the outset, including identifying a specifically named comparator. These cases are very complex, both legally and evidentially. For many of these claimants it takes years, decades even, before their claims are determined by the tribunal. In addition to the overstretched tribunal system, employers generally raise material factor defences, and take appeals that significantly lengthen the time taken by tribunals to resolve claims.

Meanwhile, employers make offers to settle for less than the full value of the claims, knowing that their female employees will otherwise have to wait years to get justice. In other cases, employers sometimes use underhand methods to put pressure on their employees to accept such offers or indeed drop their claims completely. In one case, a council was found to have victimised female workers by sending them letters stating that if they continued their equal pay claims it could lead to job losses.

Representative actions would go a long way to preventing these sorts of situations occurring and undue pressure being put on hard-working women workers who are exercising their legitimate rights. It would mean that a group of workers would not have to be individually named in tribunal proceedings and, as Rose suggests in his article, it could be the tribunal that determines or certifies a class of workers to be represented in any given proceedings.

Lengthy processesSuch a system would be much fairer for the claimants and would not unduly prejudice employers, who will still be able to present any defences they might wish to raise. Equal pay cases take a very long time to reach conclusion – in some cases over 10 years. Such lengthy processes are costly for all parties involved in the litigation and are having the effect of clogging up the entire employment tribunal system.

It is likely that an opt-out multi-party action procedure would allow cases to progress far more speedily, allowing access to justice as well as saving costs for the parties and the public purse. Cases could be run in a far more orderly manner. There could be avoidance of different tribunals taking inconsistent views of the same points. Other models of representation have not been successful in achieving justice for equal pay claimants, with the contingency fee system resulting in significant amounts of awards and settlements going into the pockets of ‘no win, no fee’ solicitors – a practice that is not replicated in the successful claims taken by unions. And ‘no win, no fee’ lawyers tend to take only straightforward cases, leaving the more difficult cases for unions to fund.

Ben Patrick is a legal officer at the public service union UNISON