Thursday, March 15, 2012

The complexities of pensions "deals"

Were our Health Service Group Executive (SGE) next week to agree to recommend the Government's "final offer" on NHS pensions - even though it is essentially the same offer against which we took strike action - there is a danger that, in agreeing age-related protection, the Union could be responsible for unlawful, indirect age discrimination.

In order to show that we were not, in those circumstances, in breach of Section 57(2)(a) and\or (d) of the Equality Act 2010 read with sections 19 and 5 of that Act we would have to be able to show that our agreement to age-related protection is a "proportionate means of achieving a legitimate aim".

In order to understand how this point applies in practice, it is always as well to remember the case of Allen -v- GMB ( in which the Court of Appeal upheld a tribunal finding that the way a trade union negotiated an agreement amounted to unlawful indirect discrimination, remarking in passing that;

"The worst aspect of the case in our judgment was the way in which the... ...Union members were manipulated into either accepting the offer or doing nothing," and that;

"Its [i.e. the union's] obligation to its members is that in return for their subscription it will provide to them without discrimination, benefits and services, not deliberately omit to afford them access to those benefits and services and not subject them to any detriment." Also that;

"Still less is it [the union] free to procure the acceptance or acquiescence of those members by a marked economy of truth in what it says and writes to them."

If I were contemplating asking UNISON to recommend changes to a major pension fund, I would be inclined to err on the side of caution and ask for a full Equality Impact Assessment before making such a recommendation.

Our professional indemnity insurers would expect as much. You might think.

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