Why attitudes to sexual harassment at work are ripe for change

More than half of women, and nearly two-thirds of those aged 18-24, said they had experienced sexual harassment at work, according to research by the TUC in collaboration with the Everyday Sexism Project. So how effectively are women being protected at work under the UK’s equality laws?

Employment Law Harassment Sexual Discrimination Scotland Equality Work Legislation Tribunal

The Fawcett Society, the UK’s leading charity campaigning for gender equality and women’s rights, has launched a review of the UK’s sex discrimination laws in response to the risk that existing rights could be eroded due to Brexit, and to consider the effectiveness of present laws. Also, the government has published its long awaited review of the introduction of fees in the employment tribunal (ET). The fees were introduced in 2013 and the tariff for a woman bringing a case of sexual harassment to a full tribunal hearing is £1,200.

The tribunal service does not publish data on sexual harassment claims as distinct from other types of sex discrimination so the figures available are for that wider category (but exclude pregnancy discrimination and equal pay). In the last two years the average number of sex discrimination claims was just under the 5,000 mark while the average number lodged each year in the five years before fees were introduced was 16,939. This downward spiral is reflected and, indeed, magnified in the statistics concerning awards of compensation.

Compared with the average for each of the five years before fees came in, the number of women awarded compensation for sex discrimination last year had dropped by more than 75 per cent. They totalled just 36 throughout Britain.

Meanwhile, the UK government’s published finding was that “the original objectives [of the fee system] have broadly been met” and that “while there is clear evidence that ET fees have discouraged people from bringing claims, there is no conclusive evidence that they have been prevented from doing so”. The review acknowledges that thousands of people have notified complaints to ACAS but, despite not achieving any resolution though the ACAS Early Conciliation service, have not gone on to raise any tribunal proceedings. Yet Theresa May’s Government is adamant that this does not mean they cannot realistically afford to pay. The review suggests that at least some of these would-be claimants could save up for the fees by cutting down on non-essential spending.

The Scottish government, on the other hand, has resolved to abolish the tribunal fees system north of the Border, though it remains unclear when. Given the figures, it is reasonable to anticipate that removing the cost barrier in Scotland may see an increase in the uptake of legal remedies for women who feel they have been harassed. However, there are other factors that may also deter women from speaking out and enforcing their legal rights.

Sexual harassment includes unwanted conduct related to sex or of a sexual nature as well as less favourable treatment because of rejection of unwanted sexual advances. Some might fear the emotional price of pursuing tribunal litigation as much as the financial one. In the criminal courts, people who allege they are victims of certain sexual offences receive lifelong anonymity.

In England this is a statutory right, whereas in Scotland, though not enshrined in statute, editorial convention protects alleged victims. The situation in employment tribunal cases is a little different. Protection of a claimant’s anonymity is not automatic, though in certain circumstances a tribunal may order that the identity of the claimant should not be disclosed to the public. This is not guaranteed and the tribunal will weigh up the principle of open justice with the claimant’s right to privacy.

It may be that some would-be claimants are deterred by the prospect of publicity and may be unaware of or sceptical about restricted reporting orders. There might be widespread reluctance to report problems because of the uncertain job market and the prevalence of zero hours contracts in certain sectors.

Is there a culture of acceptance? According to the TUC report, women who have experienced sexual harassment often find their experiences are minimised. Some respondents to the survey expressed the fear that they would be seen as humourless and unable to “take a joke” if they challenged or reported the behaviour.

The Access Hollywood footage showing Donald Trump bragging about sexual harassment of women didn’t prevent his election victory. It didn’t even damage him significantly in the polls. The time might be ripe for the Fawcett Society’s review to consider the scope for the law and the tribunals to play a useful role in social engineering by shifting attitudes as well as ensuring adequate access to justice.

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