As both mediator and lawyer I have a particular interest in, and experience of employment law and discrimination issues. Accordingly, just before Christmas 2017 when I heard an item on the radio for news about pay inequalities in the BBC, I took note. I distinctly recall thinking that this was an issue that would run and run, and indeed it has. Of late, one very notable development has been that an accomplished BBC woman journalist with a high profile job resigned in protest because it had come to light that she was paid notably less than some of her male counterparts.
One response to the above that I have read in recent legal posts and blogs is that an aggrieved person should issue proceedings in the Employment Tribunal (ET). The fees regime previously imposed by the ET has been abolished and in some eyes at least, ET processes and procedures are relatively informal. In some instances, there may be lawyers who offer no win no fee arrangements through insurers.
The purpose of this article is not to give legal advice or to deter people who think they are victims of discriminatory salary arrangements from pursuing whatever course of action they think is appropriate. Indeed, the neutrality of the mediator necessarily demands that those who are parties to any form of employment dispute take legal advice before any settlement is signed off.
However, even in the context of the scenario portrayed above, the process of issuing ET proceedings should not be entered into lightly. The law in the UK on sex discrimination is not straightforward. There are innumerable exceptions and qualifications to the full pay principle and outcomes are in many respects dependent on case law guidance which itself is not straightforward and is sometimes conflicting.
There are logistical questions and there is the issue of hidden costs, namely the cost of time expended on such things as staff being interviewed and writing statements, checking through often detailed records or spending lengthy periods of time in lawyers’ offices or tribunal buildings that could otherwise be put to something more economically productive.
There are also some other considerations and in this regard I was interested to read some recently expressed views on this subject by Mariella Frostrup, the Observer journalist whom I have lauded previously.* Taking a characteristically robust but nonetheless neutral stance she explains to her readers that in the context of pay parity, people need to work together and she states that “no social revolution has achieved goals without the participation of both sexes”. She continues stating that she does not blame men for historical and continuing inequality between the sexes and argues that instead “we really need to haul all our mates from the opposite sex onto the bandwagon. That means listening as well as talking”.
Many victims of pay inequality even amongst those who are very aggrieved, will be reluctant to become involved in protracted ET proceedings. Some employees may be concerned that their reputations may be tarnished, that they will be seen as unduly litigious or vexatious and that their future employment prospects may be harmed. Others will not welcome the possibility of press intrusion with possible misreporting. Some may issue proceedings, only to find that their “opponents” are not as resistant as they may have thought. Indeed, they may well realise that they could have done things differently and much more cost effectively.
Additionally, at least in my view, even though ET proceedings in the UK at least are to some extent free of the evidential constraints that one encounters in the courts, the actual procedures are not simple and straightforward. Even allowing for a relatively robust judiciary, there are still options for parties to delay matters and, as in the courts, there are significant hold ups.
There are mechanisms that can be used to settle issues such as those provided by the UK Arbitration Conciliation and Advisory Service (ACAS) and there is provision for mediation within the Employment Tribunal. However, use of such mechanisms is subject to the potentially disadvantageous considerations outlined above. Because they tend to be offered relatively late in the overall process, they may not be utilised until it is too late because opinions may well have become too entrenched.
Mediation, which is an ideal forum for Ms Frostrup’s exhortations to talk AND listen, would allow for the disputing or conflicting parties to engage and discuss matters meaningfully at a very early point in time. The merits of potentially complicated pieces of law could be discussed by the parties themselves and outcomes would be dictated by them rather than ultimately being imposed by a possibly remote judicial body.
Those involved would be able to take a view of the extra-legal considerations mentioned above and given that the overall success rate is 95%, chances are that over the course of perhaps two or three weeks rather than several months, an outcome that all were content to accept could be achieved.
A mediation process will be much more informal than either courts or ET, and this in itself will make things easier to discuss as there will be less stress in the room. It will, however, be structured and future-focused. The mediator, who will of necessity be impartial, will work with both sides towards reaching a resolution I am mindful when but will not coerce anyone to agree something to their disadvantage. The focus will be about uncovering the two sets of needs and searching for solutions. The parties will agree because they want to agree, rather than being handed down a decision which may suit neither.
* “Will my girlfriend stop loving me if I am less than her? By Mariella Frostrup, the Observer magazine 11/02/18
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.