Engender blog

Guest Post: Women’s Access to Employment Tribunal

Guest post by Jillian Merchant of Thompsons Solicitors

Sex discrimination, sexual harassment and the fight for equal pay are, sadly, still the reality of many working women’s lives.

Despite the Equal Pay Act being passed over 45 years ago the fight for equal pay goes on. Women are still paid almost 10% less than men on average if in full time work and over 19% for all types of employment.

Sexual harassment in the workplace is rife. You only have to glance at the Twitter hashtag #EverydaySexism to see that sexism remains widespread in the UK workplace. It is far from being a problem society no longer needs to discuss. The anonymous postings make clear that women still do not think they will be taken seriously if they report the incidents. More often than not being told that they are “over-reacting” or that it is just “banter”.

Generally the fear of being labelled “a troublemaker” or jeopardising long fought for career prospects is enough to prevent the majority of women suffering from sexual harassment or discrimination at work from ever speaking out. In 2005 the Equal Opportunities Commission found that 30 000 women lose their jobs every year because of maternity discrimination, with only 3% seeking redress at the Employment Tribunal.

In these situations, women deserve to have access to the justice system to seek redress. However, the introduction of fees to lodge Employment Tribunal claims have made even this basic right almost impossible to access.

In July 2013, the UK Government introduced a fee system for Employment Tribunals. In order to lodge a claim you are now required to pay a lodging fee of up to £250 and then a further £950 for the case to proceed to a hearing before a Judge.

The result has been a drastic drop in claims, with women claiming discrimination disproportionately affected. Official statistics show an 81% drop in claims lodged between April and June 2014, compared to the same time in 2013. All types of discrimination cases have fallen however sex discrimination cases have been worst affected with a reduction of 91%.

These statistics were highly predictable. Women are more likely to work in low paid, part-time jobs which are short term, temporary or on a zero hours contract basis. This means fees are even less affordable.

Fees can be reduced, in some circumstances, but many women lose out on this because the criteria for reduction is based on household rather than individual income. Additionally households with savings of over £3000 do not qualify.

The system assumes that household resources are pooled and shared equally and means women have to seek the support of their partner before lodging a claim. This often ends up with women having to choose whether to use their savings for their children’s futures or family holidays or accepting unlawful discrimination in the workplace.

Even after getting to the Tribunal women face an uphill battle to link their experiences, to their sex to enable a finding of unlawful discrimination to be found.

The recent example of Ellen Pao’s sex discrimination claim in the United States against her former employer, venture capital firm Kleiner Perkins Caufield & Byers is case in point. The trial heard evidence of a “boys’ club” atmosphere, all-male trips and inappropriate sexual advances. Ms Pao has since described the discrimination she experienced as, “death by a thousand cuts”. The Court determined that there wasn’t enough of a link between such incidents and Ms Pao’s (lack of) career progression to prove discrimination. Again the flood of support on social media, through the hashtag #ThankYouEllenPao, demonstrates just how powerfully women identify with her struggles.

This paints a fairly depressing picture in terms of women’s access to justice and employment tribunals.

So, what can be done to assist?

Under the Smith Commission the rules and procedures relating to Employment Tribunals are to be devolved to the Scottish Parliament. This gives a unique opportunity to create a new forum for employment and equality dispute resolution.

The creation of a Scottish Employment and Equalities Court with a proper costs regime would enable women to recover their legal costs from their employer if their case is successful. Making actions for sex discrimination or harassment more accessible and affordable. Without cost recovery access to representation is limited, with no equality of arms or access to justice.

At present, the law relies upon individuals raising discrimination claims, meaning that change is only enforced on a piecemeal basis. There is no power to extend the judgment to all women treated the same way in the workplace. The important role of trades unions and the collective nature of many employment issues should be recognised by introducing a class action system to bring certain claims as group actions e.g. equal pay.

The quest for women’s equality in the workplace is everyone’s responsibility. Not just the few brave women who risk career and reputation to challenge discrimination. The opportunity presented for Scotland to lead the way should be firmly grasped, to create a system that will ensure equality of arms and equality of opportunity meaning more women can be supported to tackle sex discrimination and harassment in the workplace.

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