How a strategic approach to discrimination claims has shaped what is in the Employment Tribunal Archive

Most early cases of sex discrimination involved recruitment or access to promotion. Recruitment cases were comparatively straightforward: was the claimant better qualified than the other candidates; was there a recruitment procedure and had it been followed? Promotion was a harder nut to crack – and still is. Having set out the facts of the woman’s qualifications and experience and the process by which a promotion was decided, the Employment Tribunal was then reluctant to draw an inference of discrimination.

By 1980, five years after the introduction of the Sex Discrimination Act (the Act), it had become apparent that there were some glaring holes in the protection the Act provided.  A woman could not claim discrimination on grounds of pregnancy; the concept of sexual harassment was some years in the future; and retirement age was explicitly excluded from the scope of the Act, as was service in the Armed Forces. 

The Equal Opportunities Commission (the EOC) prioritised the gaps. Top of the list was pregnancy discrimination, for dismissal of women when they became pregnant was widespread.  Staff sifted complaints and interviewed the women, Commissioners considered the evidence. Only the strongest claims were supported – women with sound qualifications, relevant experience, a good attendance record, and a personality robust enough to withstand cross-examination by a barrister; in short, the kind of person, who, but for the fact of her pregnancy, any business would want to employ. Claim after claim failed – a pregnant woman was not a woman, but, to use the biblical terminology adopted by the courts, she was a woman with child, a nomenclature that effectively created a third sex to whom statutory protection did not apply.

Sadly, even after a decision from the European Court of Justice had established that pregnancy discrimination fell within the scope of the Act, employers continued, and still continue, to discriminate against pregnant women.  An examination of decisions in the Archive could show whether the characteristics of the women dismissed on grounds of pregnancy now are similar to, or different from, those of women who brought claims thirty years ago, and whether there is a pattern to the type of employer involved.  

In the 1980s the notion that a woman might want to carry on working beyond the age of 60 was unthinkable; for women to retire five years before the age at which men did was seen as somehow pre-ordained, and the link between retirement age and pension age was seen as unbreakable. The redoubtable Dr Helen Marshall, the only person to go twice to the European Court of Justice, surmounted every hurdle and succeeded in bringing retirement age within the scope of the Act. 

The first claims of sexual harassment arose in the mid-80s. As with pregnancy discrimination, the women supported by the EOC had to have an exemplary employment record and be of good character – counter allegations from the employer’s side was not something we wanted to bring down on any of the women concerned. Success was swift and effective, possibly because the behaviour of the alleged harasser was so obviously out of order and in some instances amounted to sexual assault. Once sexual harassment had been found to amount to a breach of the Act, employers quickly began to introduce policies to prevent it, and after two or three years the nature of the claims began to change. The claims were no longer about the harassment itself, but about the way in which the employer’s internal procedures for dealing with allegations of harassment had been played out, with women alleging that whereas they had been side-lined or even downgraded, the alleged harasser had been promoted out of trouble. This is worthy of further exploration through the Archive: is there evidence that men fare better than women, even when by the employer’s own standards, they have fallen short? 

Equal pay

In its original form, the Equal Pay Act 1970 only covered situations in which men and women were doing the same or broadly similar work, but in 1983 the Act was amended to include the concept of equal pay for work of equal value, whereby a woman doing work that was different to that of a male colleague, but equal in terms of the demands it placed on her, could bring a claim.  

Equal value claims were slow to take off, but nonetheless the EOC was involved in more than 50 of the first 70 claims and was instrumental in establishing much of the case law on equal value. Very little research has been carried out into the characteristics of the women bringing the claims and of the organisations against whom they brought the claims. There is a similar dearth of research into the way in which the Employment Tribunal system deals with equal value claims: why does it take up to fifteen years to get a decision; where are the sticking points; in how many cases are additional claimants joined in some way down the line and at what point does this happen?

In short

The Archive opens up a range of issues to the social historian: the broadening out during the 1980s of protection against discrimination on grounds of sex, and the difficulty with which this was achieved; the differential impact on women and men of changes to the Tribunal regime; and the sheer length and complexity of equal value claims. 

The time line or trajectory of such issues is also of interest. Examining case decisions in key areas for two years before and two years after an issue came within the scope of the legislation would provide information on the merits of a strategic approach, not just in getting protection against discrimination extended, but also in following up that extension to ensure that employers introduced proper procedures: policies equalising retirement age; procedures to prevent and deal with sexual harassment; and family-friendly working practices.  

With changes to the legislative framework and the demise of the EOC, a strategic approach is no longer possible – but perhaps it should be.

Sheila Wild (c) February 2014

Sheila Wild, now in her mid-sixties, is a writer and equality consultant, and founder of www.equalpayportal.co.uk You can contact her at Sheila.Wild@btinternet.com