The Parliamentary Women and Equalities Select Committee invited FRU to make a submission of evidence to its current enquiry into Sexual harassment in the workplace. Our evidence is published by the Committee at this link https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/inquiries/parliament-2017/sexual-harassment-workplace-17-19/publications/
We focussed our evidence on the following aspects of the enquiry, which are most relevant to FRU’s work:
a. The efficacy and accessibility of tribunals and other legal means of redress
b. Potential improvements to the processes involved in bringing claims, managing a case, attending a hearing, engaging in settlement negotiations and enforcing tribunal awards.
We made the following key points:
· Someone who has experienced sexual harassment and who chooses to pursue a claim is likely to spend at least six months dealing with the Employment Tribunal (ET) process. The process itself is difficult and distressing. FRU has seen many clients suffer from the effects of this stress. It is not at all uncommon for claimants to suffer from depression, anxiety and similar mental health conditions as a result of this process
· Unless a claimant is a member of a union or has legal expenses insurance, advice and representation is financially out of reach. In the ET, legal costs are not awarded to the winning party as a matter of course. Tribunal awards are generally modest relative to the cost of legal representation, which is driven by the complex nature of these claims, rather than their financial value. This means that the vast majority of cases cannot be funded on a ‘No Win, No Fee’ basis and it is impractical for the claimant to pay privately, even if they have access to funds. This leads to a real or perceived ‘inequality of arms’ between themselves and their (former or current) employer.
· The lack of provision of accessible and affordable early advice to potential claimants significantly inhibits the efficacy of legal remedies as a mechanism for addressing the issue of sexual harassment in the workplace. This lack of provision has a disproportionate impact on the most vulnerable groups of potential litigants such as claimants with disabilities, migrant claimants, claimants who speak English as an additional language and claimants with caring responsibilities (who are overwhelmingly women).
· In any sexual harassment case the ET needs to make a finding on whether the alleged conduct was unwanted by the claimant. A claimant representing themselves in such a circumstance would be required to challenge the evidence brought by cross-examining employers or colleagues.
· Represented employers generally offer settlement on standard terms, which almost invariably include confidentiality clauses. Claimants representing themselves often don’t realise that they can counter-offer alternative settlement terms in the course of settlement negotiations.
· Claimants need emotional as well as legal support through negotiations, which can be unusually stressful in the context of sex harassment cases.
· The rise in claims following the Unison Supreme Court judgement in July 2017 has placed the administrative and judicial resources of the ET under great strain. Hearings are typically listed for dates nine to twelve months after a claim form is accepted by the Tribunal, with further delays if any postponements are requested by either the employee or employer. Only 52% of open track cases (which will include almost all harassment claims) are resolved within 26 weeks. It is not uncommon for claims to take several years to resolve.
· Due to the longer than average length of cases featuring sexual harassment, the delays in the listing of tribunal hearings significantly hamper the effectiveness of ET claims as a means of redressing sex harassment issues in workplaces. Delays lead to relevant evidence (e.g. email correspondence) and witnesses being more difficult to obtain for the hearing.
Based on our experience we have made the following recommendations to the Inquiry:
1. Extending the three month time limit for the Employment Tribunal to have jurisdiction to hear sexual harassment claims to two years.
2. Legal aid provision for both early advice and representation for claimants who have claims which include sex harassment or sex discrimination elements.
3. Greater administrative and judicial resources made available to the Employment Tribunal.
The annual London Legal Walk takes place on May 21st. The walk supports a wide range of advice and pro bono charities in the south east and FRU is a major beneficiary. We are entering a team and we want to raise as much money as we can ourselves to support the London Legal Support Trust.