Representing Women in Employment Law
by Jessie Ingle on 8 May 2017
LL.M (Cantab), 2013-2014
Associate, Dispute Resolution, Linklaters LLP
The views expressed in this article are exclusively those of the author and do not necessarily reflect the views of Linklaters LLP.
Less than two years after completing my law degree and with a false sense of confidence drawn from the time that I progressed to the semi-finals of university mooting, I found myself making submissions about discrimination in maternity leave to an Employment Tribunal judge. I was undertaking a secondment to the Free Representation Unit (the FRU) – a charity that provides, uncannily, free representation before employment tribunals and social security tribunals. I was running my first case at the FRU (and ever) – an unfair dismissal claim against an employer for sacking a woman who had not returned from her maternity leave on time due to a number of intervening circumstances – ranging from a car accident to being prevented from leaving a certain country by the border police. Fortunately, the claim was a success and the woman was able to get her job back. However, the case was only one of many in which women face barriers in their working life.
Over half the people I represented during my six months at the FRU were women bringing claims against their employers for issues that arose because of their gender, including maternity discrimination and sexual harassment. There is a prevalence of gender-related issues permeating employment that are yet to be resolved – from the overarching problems with the gender pay gap to the individual experience of a woman being sent home from her first day at work because she was not wearing high heels. In April, the government rejected a call for a specific ban on companies forcing their female workers to wear high heels, on the basis that guidance the current law was adequate. However, the government admitted that knowledge of the law was “patchy” and is proposing to issue new guidance to employers this summer. Such guidance will be certainly welcome and address one of the avenues in which discrimination still manifests itself in the workplace – indeed, in my experience at the FRU I represented a woman whose employer dictated that all female employees should wear makeup. Small steps (backwards in high-heels or just in work-appropriate ballet flats) are being taken to address the issues still being faced by women in the workplace, yet such issues ostensibly continue to pervade working life.
Adding to the difficulty faced by some women in their employment are the barriers to their access to justice. Fees for employment tribunal hearings were introduced in 2013, resulting in a 73% decrease in the number of cases brought each year. Higher fees are in place for Type B claims than Type A claims. Type A claims include those for unpaid wages and notice pay, whereas Type B claims include those for discrimination and unfair dismissal – claims disproportionately more likely to be brought by women. Sex discrimination complaints fell by 83% from June 2013 to September 2014, whereas the fall in all jurisdictional complaints was 68%. The trade union Unison brought a judicial review against the fee scheme on the basis that it indirectly discriminated against women – the review was unsuccessful at first instance and on appeal. However, the case was heard before the Supreme Court in March this year, the outcome of which is yet to be handed down. One of the criticisms by the courts dismissing the appeal was that the case could not be run on statistics alone; however, even during my short time at the FRU I encountered empirical evidence of the effect of the fee scheme, when I prepared a sexual harassment claim for a young woman who decided not to go forward with her case on the sole basis that the fees were prohibitive. While we await the outcome of the Supreme Court hearing, the likely fact remains that women are facing barriers not only in their employment but also in their access to justice to remedy such issues.
My six months at the FRU was a far cry from my day-to-day experience as a lawyer at a City firm, yet I felt better prepared due to my time at Lucy Cavendish. During the year I spent at Lucy studying for my Masters of Law, I encountered women from a vast array of cultural and educational backgrounds and with a rich diversity of experience that they were willing to share. In becoming a more well-rounded lawyer due to my time at Lucy, I was able to better provide representation to women from all walks of life.