The Equality & Human Rights Commission (“EHRC”) is a fantastic organisation that seeks to protect employees and workers from discrimination at work. I regularly read their published Reports and publications because they interest me and keep me informed of potential future developments, which is handy given my sizable discrimination-related workload for employees and employers alike.
The EHRC have recently published their most recent Report: “Turning the tables: Ending sexual harassment at work”. The Report raises well-known concerns about the lack of support provided to, and the pressure and detriment placed upon, individuals who identify sexual harassment issues in the workplace.
As usual, the Report ends with some law reform-based recommendations for the Government to consider to improve matters. And, rather unusually with an EHRC Report, whilst I completely agree with the motive behind the recommendations, I can’t much see how the majority of the recommendations themselves will make much positive difference. For me, it appears to be a case of ‘good intent, bad execution’.
But, rather than simply take my word for it, let’s explore some of the recommendations and have a proper look.
(1) ‘Safeguards to restrict confidentiality clause usage which seeks to prevent disclosure of past acts of harassment’
The majority of discrimination claims I’ve brought on behalf of employees have ended in settlement before final Tribunal hearing. But, contrary to popular belief, in the vast majority of occasions, the employee concerned looks at that as a moral victory in terms of the employer effectively (albeit not legally) admitting that they allowed harassment and/or sexual discrimination to take place.
I say ‘contrary to popular belief’ because there seems to be a misconception that employers ‘get away with it’ (i.e. will continue to commit acts of sexual harassment and/or sexual discrimination) because they can ‘sweep it under the rug’ and avoid it becoming public in an Employment Tribunal. However, in practice, the employer usually has to pay a sizable chunk from their own pocket (and, in reality, there is no better way of punishing an employer than by reducing their bank balance) and the accused, going forward, is forced to weigh up the potential future cost of committing similar acts once again.
So, what is the issue here? Well, preventing enforceability of confidentiality clauses in respect of harassment allegations and/or Tribunal claims effectively removes one of the largest bargaining chips between employee and employer. So, if this change came into effect, far more claims would end up at Tribunal because there would be no guaranteed way in which to offer a settlement amount in a way that avoids the matter being published online and/or in the media afterwards. Ironically enough, this change would effectively deny likely compensation to many victims of sexual discrimination and/or harassment. If both parties wish to be able to agree this, they should be able to.
(2) ‘extending the limitation period within which to bring a claim to six months from the final act, not the current 3 months’
This is likely to lead to confusion amongst employees as to which potential claims they have to bring within 3 months and which they have to bring within 6 months. On top of this, most employees (or former employees) who bring a sexual harassment and/or sexual discrimination claim also bring additional claims (which would still have a 3 month limitation period). Therefore, most employees, if they wish to bring all of their claims in one (which, let’s be honest, will keep things nice and simple), will still have to bring them within 3 months. Otherwise, the alternative is bringing some claims within 3 months and then, within a further 3 months, bringing an additional Tribunal claim with a different Case Number (leading to additional legal costs or, at very least, additional time and effort).
Put simply, different limitation periods for different claims simply increases the likelihood of claims being brought out of time due to lack of clarity and is a potential recipe for disaster!
(3) ‘a shift of burden to the employer to show why time should not be extended for any out of time claim where the claimant establishes the reason for delay’
There is a fairly simple premise to the current rules. That premise is that, if the claim is brought out-of-time, the ‘fault’ is solely down to the Claimant (i.e. employee) as the person responsible for bringing it. Due to this, it is seen as fair that it is the Claimant who should argue as to why the timelimit should be extended. After all, no employer can defend a claim before it is brought and it is very rare that an employer can act in a way to prevent an employee from bringing a claim.
To change this would be to effectively place the implied blame for the late claim on the one party out of the two who was not responsible for bringing that claim. To use a daft metaphor, that would be akin to placing a sole Easter egg between two children and then shifting the presumption of guilt onto the child who didn’t have the chance to eat the egg simply because the other child gave a ‘reason’ (however convincing or unconvincing) for having eaten the egg.
(4) ‘Reintroduction of the statutory questionnaire’
Where to start with this one… Employment Law used to embrace statutory questionnaires. Then everyone realised that the employer didn’t fill out statutory questionnaires; the employer’s Solicitor did. The inevitable outcome? The questionnaires contained vague, defensive comments which, in the end, didn’t actually add much to the process.
What happened next? In England and Wales, they were scrapped. Have they been missed in the cases where I have represented employees? Not even slightly…
So there we go. As above, I have great admiration for EHRC and, as usual, they are doing great work in recognising an ongoing, important issue and stating that reform is needed. And, as usual, I couldn’t agree more than more needs to be done to combat sexual harassment and/or sexual discrimination in the workplace. However, I don’t think the majority of recommendations are fit for purpose and that alternative recommendations, such as making an online ‘black list’ on the gov.uk website of employers and/or individuals who have an Employment Tribunal judgement of sexual harassment against them, would have much greater effect.
Regardless, I would be surprised to see the Government acting upon any of the EHRC recommendations as, if anything, the current feeling is that a Conservative Government is more likely to strip away employee rights in the future rather than add to them.