Unison and another v Brennan and others: UKEAT/580/07

EAT: Elias J (President): 19 March 2008

The claimants, employees of the respondent council and members of the appellant unions, made claims against the council under the Equal Pay Act 1970 for equality of pay with named comparators, and claims, under section 6(4A) of the Sex Discrimination Act 1986, against both the council and the unions for a declaration that provisions of a collective agreement concluded between the council and the unions were void under section 77 of the Sex Discrimination Act 1975. The council defended the equal pay claims on the ground that the differences in pay were justified as being due to a material factor other than sex, either by reference to a bonus payment arising out of productivity incentive schemes or to the provisions of the collective agreement. An employment judge at a case management discussion directed the equal pay claims and the application for a declaration pursuant to section 77 to be heard together on the ground that the issues raised by the genuine material factor defence were inextricably linked with issues raised by the section 77 application.

The unions appealed on the ground that section 6(4A) of the 1986 Act did not apply where a potential equal pay claim was available to remedy the grievance.

Elias J (President) held:
The United Kingdom was bound to give effect to its obligations in Community law by providing an effective remedy, to persons seeking a declaration that provisions in a collective agreement were contrary to the principle of equal treatment, which was no less favourable than that afforded to similar domestic claims. The clear wording of section 62(1) of the Sex Discrimination Act 1975 excluded proceedings for a declaration in the High Court pursuant to section 77, and there was no alternative sanction available to the claimants to have the terms of the collective agreement declared void other than the complaint under section 6(4A) of the 1986 Act for a declaration by the employment tribunal pursuant to section 77. Accordingly, the employment tribunal, which was seized of the equal pay issue which was inextricably linked with the section 77 claim, had jurisdiction to provide an effective and equivalent remedy by granting the necessary declarations, notwithstanding that the claimants could test the disputed terms in the context of their equal pay claims.

The appeal was dismissed.

Appearances: Antony White QC (Thompsons, Newcastle upon Tyne) for the unions; Philip Engelman (Stefan Cross, Newcastle upon Tyne) for the claimants; David Reade QC (Solicitor, Sunderland City Council) for the council.