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.
Highlights
The passage of the Equal Pay Act 1970 was a landmark event in post-war British industrial relations, not for introducing a qualified right to pay equality between women and men but for breaching the principle that pay and conditions of employment should be determined by collective bargaining or other private contractual means, not by the state
Opinions differ on whether the intervention of no-win, no-fee law firms changed the approach of trade unions to dealing with local authority employers, to the extent of inducing them to use litigation to a greater extent
One union official told us that there had been internal debate in his union in the early 2000s about whether to litigate and ‘the view was that we need to reach negotiated settlement . . . to deliver equal pay’. Another union official accepted that procrastination and inertia could explain the first few years of inaction, and that in the early 2000s more use should have been made of the threat of litigation. This respondent suggested that after 2003, independently of the entry of no-win, no-fee law firms, unions had begun to make greater use of the threat of litigation and had issued equal pay questionnaires, designed to force employers to disclose information on payment structures with a view to bringing a claim, to get employers to engage in serious negotiation in cases where they had previously refused to do so
Summary
In this article we present a socio-legal analysis of the operation of equal pay law, which combines a narrative account of the development of legal doctrine with descriptive statistics on litigation trends, case studies of leading decisions and material drawn from interviews with actors who played leading roles in the process by which the law played out in practice. To this end, we draw on a range of data sources. Interviews were recorded and transcribed and coded manually using emergent categories (see Section 5)
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