Harassment, discrimination and the removal of tribunal fees

In the last fortnight, we have seen the BBC announce its gender pay gap, and allegations of sexual harassment made against Hollywood producer Harvey Weinstein, which he denies. Here, head of employment for Manchester commercial law firm Kuits, Kevin McKenna, explains why the spotlight on discrimination and harassment means employers, now more than ever, need to up their game

Are employers likely to see more tribunal claims for discrimination and harassment in light of these recent news stories?

The short answer is yes – not least because the recent Supreme Court decision declaring employment tribunal fees to be unlawful will undoubtedly lead to an increase in tribunal claims generally.

In fact, the last set of Tribunal Service statistics issued in July – even when the fees were still in place – showed that claims were back on the increase in spite of fees. There were 88,476 claims in 2016/2017, compared with 83,301 in 2015/2016 and 61,308 in 2014/2015.

While the next set of tribunal statistics will not be issued until December, anecdotal evidence coming to us from tribunal offices around the country is that the number of claims has roughly doubled in the last few months.

Furthermore, the potential for reputational damage to a business from having your dirty laundry aired in public is much higher. From February this year, HM Courts and Tribunals Service (HMCTS) started to publish tribunal decisions online in a move intended to facilitate ‘open justice’, i.e. seeing how and why tribunals make decisions may help parties to decide on the merits of their own disputes.

Publicity has always been a factor for parties to consider when embarking on tribunal proceedings, but greater accessibility to detailed judgements of the disputes between employees and employers will raise the stakes for both parties. HMCTS is not only aware of this, but has stated that “easily accessible employment tribunal decisions can also act as incentive for parties to settle their disputes, rather than face potential bad publicity”.

Will the requirement to report on my businesses’ gender pay gap result in sex discrimination or unequal pay claims, and what is the potential cost to my business?

By April, 2018, all employers with 250 employees or more will be required to publish their gender pay gap. This means that about half of the UK workforce will be affected by the new rules.

Having a gender pay gap is not necessarily the sign that there is unlawful unequal pay or sex discrimination, but it will raise the prominence of the issue in the minds of potential claimants.

The recent pay publication by the BBC and the release earlier this month of its 9% gender pay gap – which is better than the UK average – has demonstrated that there is real public interest in this issue.

We would recommend that any company undertaking gender pay gap reporting do so in conjunction with a professional legal advisor, who will be able to guide you through the process with the advantage of legal privilege.

The information that businesses have to report on is quite stark, so real expertise is necessary in preparing the narrative to put the statistics in context.

In light of the recent allegations against Harvey Weinstein, what should businesses be doing to protect their employees?

Whilst the recent media storm is set in Hollywood, sexual harassment is equally a problem within UK businesses.

Not only are such claims distressing for the employee, but they can damage a business, financially (a tribunal claim following a complaint of sexual harassment can be particularly expensive), reputationally and culturally.

In September, new guidance was put in place revising the three broad bands of compensation for injury to feelings in discrimination cases.

This latest revision moves the upper end of the top band of compensation up to £42,000 (from the £25,000 set by the Courts in 2002 and revision to £30,000 in 2009). The highest award for sex discrimination in 2015/16 was just over £1.7m.

Invariably, the fewer steps a business has taken to avoid claims in the first place, the more it is likely to cost in settling a claim.

A business serious about protecting its employees will have trained their board and staff on discrimination and harassment issues in the workplace. A business should also have an effective procedure in place warning staff about the consequences of committing acts of harassment.

Our advice to businesses is to champion a zero-tolerance policy on acts of discrimination and harassment in the workplace, and to enlist a professional to train staff at all levels about the risk of harassment and warn them about the consequences should standards not be adhered to.

What does all this mean for employers?

The mixture of these ingredients should send a signal to employers who, over recent years, have taken their chances with employment law compliance on the basis that the chances of being taken to task had substantially reduced.

This time around though, we may see that there is not only an increase in claims, but an increase in the number of high value and complex cases. It is certainly time for employers to take stock and review their approach to employee relations.

Kuits runs a free quarterly HR Breakfast Club for HR professionals, business owners or anyone responsible for on-the-ground management looking to stay up-to-date with all the new legislation and best practice in employee management. You can register here for free.

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