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The Panel: Catherine Atkinson, Deeba Syed, Ava Etamadzadeh and Jess Phillips MP

SLL and Fabian Society members met on the evening of Monday 2 July to discuss policy ideas to combat and investigate sexual harassment both internally and as a future Labour government. 

SLL Secretary, employment barrister and PPC for Erewash, Catherine Atkinson, set out the legal framework. Sexual Harassment is defined in the Equality Act 2010 as unwanted conduct of a sexual nature and with the purpose or effect of either violating the target's privacy or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. The test includes the target's own perception but is broadly objective, asking whether that perception was reasonable. Catherine noted that the same principle applies to harassment targeted at any other 'protected characteristic' (i.e. age, disability, gender reassignment, race, religion or belief, sex or sexual orientation). Further, the Protection from Harassment Act 1997 creates a criminal offence of deliberate harassment (again tested objectively) and a civil remedy of damages for victims of that offence, with injunctions available in the interim. 

The biggest frustration with the current law is the time limit: 3 months in employment claims. This can be debarring and there is growing consensus on the need for change. Secondly, employers are currently under no duty to take preventative steps to prevent harassment. A form of 'vicarious liability' would assist but should be extended to include interns and volunteers. Catherine pointed to the recommendations of the EHRC report 'Ending sexual harassment at work': 1) extending the limitation period to 6 months; introducing interim relief; 3) allow tribunals to make recommendations. 

Deeba Syed questioned why SH seems so prevalent within the Labour Party? 

Jess Phillips, MP for Birmingham Yardley, suggested that the problem cuts across politics and centres on the exploitation of power dynamics. Young people eager for a career in politics are easy to take advantage of. Catherine Atkinson pointed out that the legal world must get its house in order: BSB and Law Society stats show a large-scale problem which is unsurprising given the huge differences in power between partner and trainee or QC and pupil. On a wider scale, the modern 'gig economy' is a breeding ground for abuse of power, as are unpaid internships and volunteering. 

Ava Etamadzadeh told us about her experience of being sexually harassed by the Labour MP Kelvin Hopkins. She agreed the imbalance of power can feel overwhelming. She first complained in 2014 and then complained again in September 2017, after the announcement of the party's new policy. Her disappointments with the procedure were 1) the delay: she still has not received a date for a hearing of her application; 2) lack of clarity: no legal representation or clear explanation of the procedure; 3) lack of independence (the NEC are tasked with investigating their friends and colleagues); 4) lack of specialism in the investigation. She recommended mandatory training for young people working in politics and clear policies and procedures for dealing with harassment. 

Jess Phillips MP decried the Party's lack of response to sexual harassment as a dereliction of duty: we must get our house in order, then Parliament as a whole. She outlined the Inquiry into Sexual Harassment's plan for a potential independent Parliamentary probe into sexual harassment, to be overseen by the Parliamentary standards committee. The decision-making panel would include lay people, whose voices would be hard to ignore. She hoped to include a power to remove an MP from their seat in the most extreme cases. Attendees pointed out that Parliamentary staff are frequently employed by their MP: for Jess this is an outdated system that does not reflect the reality of the relationship, as well as an unnecessary bother for MPs!

Will improved policies end sexual harassment? Perhaps not, but they ought to improve access to a remedy. For that matter, Catherine pointed out Labour's role in campaigning for claimants to have genuine Access to Justice, advice centres and to the Courts. It's more likely the long-term solution will require wider cultural change, but the first thing the Labour Party can do is to crack down on misogyny in our own institution. We heard about CLP and council meetings that can feel like an oppressive and sexist environment. Jess is confident this issue is on Jennie Forby's agenda and that the party will make progress in the coming months. Catherine expressed the hope that Labour could spearhead the best example, but in the meantime calls that we are the pot calling the kettle black shouldn't stop us aspiring for better policies to address the wider problem of sexual harassment in the workplace to implement once in government. 

What can members of SLL do in the meantime? 1) Help plan our policies for Jess and other ministers; 2) Sign Ava's petition for an independent Party complaints system 3) Pass @LabourWomensNet's CLP motion: https://bit.ly/2KpwXGe and 4) Call out sexual harassment when you see it: enjoy those awkward conversations!

For information about the Society of Labour Lawyers, Young Labour Lawyers or the Fabian Women's Network, please contact Deeba Syed at younglabourlawyers@gmail.com

 

Jess Phillips MP on Sexual Harassment in the Workplace

The Panel: Catherine Atkinson, Deeba Syed, Ava Etamadzadeh and Jess Phillips MP

Society of Labour Lawyers’ Employment Group met on the top floor of Congress House and heard from guest speaker SHANTHA DAVID of UNISON.

Labour had a manifesto pledge to abolish tribunal fees in May 2017. Only 2 months later the Supreme Court struck them down as unlawful.

 

Shantha questioned how we got to a position where Supreme Court had to lecture government on the rule of law. To explain, she set out a history of employment tribunals (beginning with the Donovan report) and emphasised their importance as generally the only forum in which an employee can vindicate their rights. Some cases may not attract an award (for example a failure to provide terms and conditions of employment) and compensation in most cases is surprisingly modest. The background was bleak enough before fees: tribunal claims were falling, and shockingly only 35% of successful claimants were being paid compensation awarded to them!

 

The Tory government’s consultation in 2013 received overwhelming reception that the introduction of fees would be inherently unfair. UNISON’s formal challenge began with a letter in April 2013, which was ignored: the fees came into force on 29 July 2013. UNISON were in Court that day. The High Court gave them permission to proceed and after the hearing, Grayling gave an undertaking he would reimburse any fees if successful (how the Ministry of Justice must regret that now!).

 

The ‘logic’ for the change, as explained by Chris Grayling, was to shift the costs to users: to combat a “technical ‘deadweight’ loss”. For Shantha, this assisted her challenge, as she could use statistics to prove that this was completely incorrect. To to find evidence, she used FOI requests and tried to persuade the government to publish statistics. There was an 81% drop in claims following the fees. It was also clear low paid and female claimants were particularly adversely affected (of interest to UNISON, who have an approx. 80% female membership). The remission scheme intended to help 53% of claimants in fact only helped 18%.

 

The road was a long one: the first JR on sex discrimination was rebuffed by LJ Moses as premature, as they could only rely on interim statistics. By the time of the second JR, UNISON could rely on statistics showing the extraordinary fall in claims, which labelled as ‘striking’. The Court of Appeal found that fall must not only mean many claimants refused to pay, but also some who “can’t pay”. LJ Underhill requested an example of one affected person, but UNISON decided to hold their line. In hindsight this did well to avoid a Gina Miller-style press inquisition, and it also highlights the role of Trade Unions: tackling systemic problems where single claimants might be induced to settle.

 

4 years on from the beginning of their challenge, the Supreme Court heard form UNISON that the fees were denying a remedy to the wronged, and particularly affecting women. In eventually condemning the then Lord Chancellor’s approach came Lord Reed’s famous words: “the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings.” The Court invoked magna carta (only in the supreme court!) and found a breach of the constitutional right to access to justice.

 

Going forward, the MoJ are administering refunds of up to 32million (although this only covered 9% of the cost of running the system). They have now undertaken to contact every person affected. Claims postponed or avoided due to fees ought to be reinstated and in Shantha’s experience Judges have been very accommodating so far. Since fees, claims have gone up by 90%. In practical terms it is near impossible to get a hearing date, and access to justice is (ironically) extremely slow.

 

The House of Lords have been debating shocking delays in the system. Clearly simply getting rid of fees was not enough. The government are now recruiting 54 judges but it will take time to train them. What will be done about closed Court buildings? Even those buildings there are are unfit for purpose: with barely 1 plug-socket per room! How can Labour attempt to speed up the process while retaining focus on justice? Early conciliation is currently treated (by employers) as little more than a procedural step. Could we put forward an early arbitration, or interim award scheme to be decided on the papers? For Shantha, this would not do, as oral evidence is crucial in complex cases such as unfair dismissal, and an assessment of oral evidence is vital in discrimination claims.

 

In questions, Shantha was sure that the judgment will retain its potency post-Brexit because it is couched in common-law terms. And for the field of employment law as a whole, If Judges continue to owe a duty to interpret in line with ECJ jurisprudence, the ECJ will in reality remain supreme. Shantha particularly expressed concerns that the government may be targeting a repeal of the TUPE Regulations, as information consultation rights are seen as onerous and might be the easiest to get rid of.

 

Group chair Tom Jones highlighted the wider applicability of such quotes as: “Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade”. The case has already been quoted in the Bach review: could it be used to challenge the legal aid cuts; or even changes to the small claims limit?

 

The Employment Group are keen to engage in future meetings and particularly find employment lawyers who would like to share their experience and discuss future Labour policy. If you have any ideas or questions, please email Tom Jones at tom.jones@societyoflabourlawyers.org.uk.

Employment Group UNISON meeting

Society of Labour Lawyers’ Employment Group met on the top floor of Congress House and heard from guest speaker SHANTHA DAVID of UNISON. Labour had a manifesto pledge to abolish...

The new Labour City Lawyers network was launched on Wednesday 21 March 2018. Over 20 SLL members joined Jonathan Reynolds MP, the shadow City minister, for a round-table discussion.
On Brexit, attendees were keen to obtain assurances on maintaining passporting rights for the financial services. Jonathan was keen to stress that Labour cannot reject the referendum and that there must be a change to our regulatory model to reflect a rejection of the ‘four freedoms’ of the EU. However, an obvious priority in his role as a shadow treasury minister will be maintaining financial stability during a transition, and decisions affecting market access ought to be ‘at the easier end of the scale’.
                                                                                                     
Jonathan criticised the government’s approach to enforcement of anti-money laundering laws, arguing that they talk a good game but are unwilling to move at the scale required, as exemplified by their lack of action against Russian nationals in the wake of the Salisbury nerve-agent scandal. Daniel Jones, who we thank for hosting this meeting, asked what Labour would do to clamp down on the illicit use of British Overseas Territories. In response, Johnny outlined a policy of registration of beneficial ownership, saying that ‘clearly the time for transparency has come’.
 
On diversity and Equal Pay, YLL chair Deeba Syed pointed out recent statistics showing a ‘staggering’ gender pay-gap in the disclosed wages of employees City law firms, and noted that the figures are skewed by excluding equity partners. Jonathan agreed that the current voluntary reporting regime is non-proportionate and ineffective. He sign-posted Dawn Butler’s International Women’s Day policy announcement that Labour will impose a requirement on employers to take action in closing their gender pay-gaps. He heard suggestions from SLL chair Kate O’Rourke on how to obtain usable and comparable statistics by ordering them to be published in a compulsory format, broken down to show those at newly qualified or partner level separately. 
 
We thank Jonathan for helping launch the group. In return, members of SLL have the opportunity to assist the shadow treasury team. As Jonathan put it, the current government could collapse in 4 years or 4 days: Labour’s government in waiting need expert legal advice and honest feedback to form robust, workable policies.
 
If you have an expertise in a particular area of commercial law, this is a perfect time to become more involved with SLL by: 1) contributing policy ideas through the City group or 2) emailing your CV to our executive committee and making yourself available to give advice to the PLP as and when requested.  

Labour City Lawyers Launch

The new Labour City Lawyers network was launched on Wednesday 21 March 2018. Over 20 SLL members joined Jonathan Reynolds MP, the shadow City minister, for a round-table discussion.


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