WWW.LAWYER-MONTHLY.COM 17 Can you discuss the importance of mediation in employment disputes? Is mediation in equal pay disputes ever feasible, and if so, what are the potential advantages? The three obvious advantages of mediation in any employment dispute are saving the costs that would otherwise be incurred at a subsequent stage of the proceedings, avoiding or mitigating the risk of adverse publicity, and ending the stress of being enmeshed in proceedings. During the last three decades, there have been waves of multiple equal value claims: first against local authorities, then against NHS employers, and now against supermarket owners and other retailers. I doubt if many of those cases could have been settled, by mediation or otherwise, so long as issues of principle were still to be resolved. There are usually too many points of dispute and the stakes are too high. I see every reason, however, why some of the more ‘traditional’ equal pay cases should be amenable to mediation. By ‘traditional’ cases, I mean those in which the claimant (usually a woman) is paid less than a colleague (usually a man) for doing substantially the same job. The three obvious advantages mentioned above apply. An early settlement can also reduce the risk of a ‘knock-on effect’ leading to further equal pay claims, though that risk cannot be wholly avoided. There is a further reason for an employer to settle an equal pay claim, by mediation or otherwise, if at all possible. When an equal pay claim results in a finding of an ‘equal pay breach,’ the employment tribunal must consider whether to order the respondent to carry out and publicise an equal pay audit. There was an exemption period for certain small and new businesses, but that period expired at the end of September 2024. not a major point of principle arose. In the late 80s and 90s, I acted in numerous sex discrimination cases supported by the EOC. The EHRC (which replaced those Commissions and the Disability Rights Commission in 2006) does not have the resources to support claims on anything like the same scale. Multiple claims, like the supermarket cases which I mention below, and other high-value claims, can often obtain legal support on a contingency fee basis. Many claimants are union members and receive support from their union, but it can be difficult for other claimants to obtain suitable representation. Secondly, until 2014, there was a statutory questionnaire procedure which could be used by claimants or potential claimants. Respondents were not obliged to answer, but failing to answer without reasonable excuse or giving a false or evasive answer could be held against them in subsequent proceedings. This statutory procedure, which made a real difference in many cases, was withdrawn in order to reduce ‘legislative burdens’ on employers. Questions can still be asked and should be taken seriously by employers (ACAS has published relevant advice) but in my view this ‘reform’ was a retrograde step. The overwhelming majority of the equal pay cases in this century have been indirect discrimination cases - mainly equal value cases.
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