No-win, no-fee lawyers – often portrayed as ambulance-chasing opportunists – have helped win equal pay for “unprecedented” numbers of women, while some unions have negotiated collective agreements “that preserved discriminatory practices”, according to a new study.
Researchers found that local authorities in particular adopted an “ostrich position” over the 1970 Equal Pay Act, trying to delay implementing it because they feared “significant industrial unrest”. Amid stand-offs as unions sought to protect male members – sometimes at the expense of female ones – it was lawyers who came to the rescue.
Simon Deakin, a Cambridge University law professor, and others, writing in a paper in the Cambridge Journal of Economics, said an “unprecedented increase in the number of claims” was “triggered in part by the entry of no-win, no-fee law firms into this part of the legal services market” after a change in the law.
The result was a dramatic spike in numbers of women taking legal action, with cases rising from about 8,000 a year in 2004-05 to a peak of more than 60,000 cases in 2007-08.“The wave in equal pay claims Britain experienced during the 2000s suggests legal actors can play a proactive role in shaping the practical operation of human rights laws in ways that assist their intended beneficiaries,” the academics said.
“The entry of claimants’ law firms also demonstrated the potential for litigation strategies to deliver tangible gains for some of the most disadvantaged groups in society.
“Equality law may be a more potent agent of social change than has been generally acknowledged.”
Before 1970, “discrimination formally based on gender” was “not unusual”, the paper said, with unions and employers negotiating separate collective pay agreements for women and men. At that time, average hourly wages for women were only about 60 per cent of the male average.
Some unions have played positive roles. Almost all the lawsuits involved staff employed by local government and public health services, partly as collective bargaining agreements made it easier to tell where women were being underpaid. Unison and the GMB unions together brought some 70,000 equal pay cases between 2004 and 2008.
However, the paper said the lawyers found themselves taking legal action against trade unions that “had negotiated agreements that were indirectly discriminatory”.
In one case, a court found GMB union officials “acted against the interests of female members by concealing information from them and pressuring them to settle claims prematurely”. The courts eventually decided the employers were responsible for discriminating against women on pay in most cases.
Stefan Cross, who set up a leading equal-pay law firm in Newcastle in 2003, said some union officials had been hostile to the lawyers’ new role in pay negotiations. “Between 2004-2012, equal pay became the number one case type in the employment tribunals only because lawyers like me were prepared to take on the cases. We had to sue the unions t to prove they were in breach of the Sex Discrimination Act in not pursuing cases. Only then did they pursue significant numbers of cases. Even now, we are leading the fight in Scotland, where we have more than 10,000 cases,” he said.
“It has to be said that, at a local level, relationships with the unions have much improved – but, at one time, they refused to be in the same room as us and we had more problems from unions than employers.
“Now we believe that they are running more than 40,000 cases, which is great, but there are still massive problems.”
Carol Fox, a solicitor known for championing pay equality, said: “The unions have to represent their members, and particularly the women who may not be attending all the meetings, [but] what is at the top of unions’ agendas are the concerns of people who demand attention.”
Despite the passing of the Equal Pay Act, she said discrimination was still a serious problem. “We need much more radical action... Women are dying waiting for their claims to go through,” she said.
In November, the Office for National Statistics reported the average full-time pay gap between men and women was about £100 a week in April last year, an all-time low.
However, Ms Fox said this figure did not tell the full story. “When we talk about the average pay gap, there isn’t such a thing. There’s an actual pay gap,” she said. “I get frustrated at averages because the average masks the worst cases.”Reuse content