Pregnancy-parenting/ workplace conflicts and tribunal procedures
It should never be forgotten that tribunals exist for users, and not the other way round. No matter how good tribunals may be, they do not fulfil their function unless they are accessible by the people who want to use them, and unless the users receive the help they need to prepare and present their cases.
So far we have considered the legal standards set through family-friendly legislation per se and through particular legislation relevant in the event of a pregnancy-related dismissal (chapter 3), and how that legislation can be applied at tribunal level (chapter 4). Both assessments have revealed flaws in standard setting and enforcement aspects of the relevant regulatory system and here another important aspect of the legal regulation of pregnancy and parenting is considered: the ability of those experiencing pregnancy-parenting/workplace conflicts to access employment tribunals. Tribunals are now established as the first, and are often the only, formal legal institution with which aggrieved employees come into contact in the event of wrongdoing at work. Tribunals are still, despite recent government attempts to keep such conflict management ‘in-house’, a core aspect of the UK’s dispute resolution framework. As Morris and Nott have argued, ‘if the mechanics of equality are defective, the impact of the law is fundamentally undermined’ (Morris and Nott 1991:160) and this chapter considers how far the relevant ‘mechanics’ of law, the procedural aspects of dispute resolution in the employment context, support or hamper our cohort of potential claimants.
Employment tribunals were established in 1964 (then, until 1994, called ‘industrial tribunals’) but initially they had limited jurisdiction. The latter grew significantly when statutory rights to redundancy payments (in 1965) and unfair dismissal (in 1971) were introduced. Tribunals’ workloads have continued to grow with the introduction of subsequent statutory employment rights and they now have the jurisdiction to hear 70 different types of complaint, including an array of anti-discrimination and the more recent family-friendly legislation. Whereas in the financial year 1988/89 29,304 applications were registered at employment tribunals in Britain as a whole, in 1998/99 91,930 were registered, 62,626 more than in 1988/89. During 2006/ 07 a total of 132,577 claims were registered (see ETS 2007). The main ethos of employment tribunals remains to provide ‘speedy, accessible and relatively informal justice’ (ETS 2006:7) and this has been tested by the workload increase, especially as this increase has not been matched by an input of resources. Given the inevitable stress on tribunals, reform was inevitable and calls for it came in the form of proposals set out in a 2003 White Paper which followed Sir Andrew Leggatt’s Report (Leggatt 2001). The White Paper sought to consolidate all tribunals under a single service and, hence, the employment tribunal service has since been incorporated into the Department for Constitutional Affairs and is now, in the wake of a further reorganisation, part of the Ministry of Justice. A further important reform occurred in 2004 when the government introduced new statutory grievance procedures which are to be exhausted before a claim can be heard at an employment tribunal (see the Employment Act (Dispute Resolution) Regulations 2004 SI 2004/752). Given the increasing workload of tribunals, a move of this kind, which aimed to promote less litigation and more informal, in-house resolutions of workplace disputes, was understandable. Yet its ineffectiveness as a method of reducing litigation and encouraging a less acrimonious means of resolving workplace tensions was transparent very early on and the procedure was heavily criticised in a government-commissioned review led by Michael Gibbons (Gibbons 2007), which recommended its immediate repeal. The government has since accepted its unpopularity and the system is set to be repealed under the Employment Bill 2007.
Whilst it applies, the statutory grievance procedure requires that aggrieved workers follow the relevant procedure prior to commencing a legal action at a tribunal. Equally, an employer must follow a disciplinary procedure prior to dismissal and failure to do so will make the dismissal automatically unfair. Compensation can be increased or decreased where procedures are not followed by the parties (for details of its application, especially in relation to our cohort, see Palmer et al. 2006 chapter 16). The notion behind this legislation was to introduce a simple procedure in the event of disciplinary action (by the employer) or a grievance (by the employee) which would promote the resolution of disputes in the less formal workplace setting and hence avoid ‘formal’ litigation, a policy which is widely supported according to the Gibbons Review. The procedure is, however, complex and it is not always clear which of the procedures (grievance or disciplinary) applies. For example, where a dismissal occurs and an employee feels it may be pregnancy or childbirth related, it is a dismissal and potentially discriminatory and thus straddles both procedures. The impact of the procedures upon employment tribunal time limits has also proved to be problematic (see Gibbons 2007) and it is conceivable that claimants might inadvertently miss the three-month deadline to commence proceedings, for pregnancy-related unfair dismissal and sex discrimination, as well as any other actions that may be relevant to the case, if they mistakenly consider the dispute to be one that ought to be dealt with under these new procedures and do not file a complaint within time.
Where the statutory grievance procedure applies, the time limit for bringing a claim to an employment tribunal is extended by three months and this may in fact, in itself, prove to be helpful in our context as extending the time to bring a claim to the tribunal might be viewed as a blessing given the demands made of new parents, especially mothers, and the potential stress that a workplace dispute could have. On the other hand, it may be that the internal procedures simply draw out the litigation process, rather than delaying it, as it still requires a litigant’s attention and focus in order to avoid accruing penalties for non-compliance with the procedures, the details of which have grown in complexity (see for example, IDS Brief 815 October 2006:13–20 and IDS Brief 827 April 2007:10–18). Interestingly, as Gibbons highlights (Gibbons 2007), these in-house disciplinary procedures have actually encouraged, as opposed to alleviated, formality and are often seen as an extension of, rather than an alternative to, the employment tribunal application, which is of concern given views about tribunals:
The overwhelming view of those the Review spoke to was that the tribunals are increasingly complex, legalistic and adversarial, making them a daunting experience for many. The burden of preparation and the anxiety over what is to come can adversely affect health and strain relationships both within and outside the workplace, and the experience can damage career prospects. Survey data [SETA 2003] shows stress and depression were reported in 33% of cases (rising to 43% for discrimination cases).
Of course this ‘daunting experience’ and ‘anxiety’ is relevant to all individuals involved in conflicts at work, but for those involved in pregnancy-parenting/workplace conflicts there is an extra dimension as this occurs at a time when physically, emotionally and socially our cohort of aggrieved workers are experiencing the additional challenges of their pregnancies or newborn babies. The impact of the grievance procedure in the context of pregnancy-parenting/workplace disputes is under-researched and one can only imagine how the difficulties and dilemmas of their particular experiences impact upon abilities to adhere to the intricacies of the procedure. It is certainly possible to conceive of a situation where such procedures deter commencement of legal proceedings altogether and, if this is the case, it may help explain the extent of the litigation gap in this context (see chapter 2).
It appears as though these well-intentioned procedures might operate in a way that marginalises those involved in pregnancy-parenting/workplace disputes. Whether those involved in formulating a replacement for these procedures prove to be ‘deaf’, in Conaghan’s sense of the term (Conaghan 2005:26 and chapter 1, above), to the needs of this cohort remains to be seen. However, this potential to marginalise is clearly not confined to the doomed dispute resolution legislation and the two main sections of this chapter demonstrate how what may, at first sight, appear to be no more than neutral traits of the employment tribunal system may in fact pose particular hurdles for women bringing a claim following pregnancy-parenting/workplace conflicts. The discussion suggests how entrenched aspects of the tribunal system provide a veneer of objectivity but, when viewed from the standpoint of aggrieved workers in a pregnancy-parenting/workplace conflict situation, reflect an attempt to fit this type of conflict into a conventional structure which was, like the equality legislation of the 1970s (see chapter 3), not created with them in mind. This can, it is argued, have damaging repercussions. It seems that the system is at best awkward for our cohort of individuals and at worst, detrimental to their genuine ability to access justice in the event of wrongdoing.
Time limits and the limits of time
A speedy resolution to claims once they are registered at employment tribunals is perceived to be one of the most important aims of the employment tribunal system. This is evidenced in the time limits for applications following alleged wrongdoing set by the legislation, three months under SDA and ERA claims, and the fact that these time limits are strictly enforced by courts and tribunals (see below). The need and desire for a quick resolution to disputes that occur is an assumed priority amongst policy advisors and staff working at tribunals. Gibbons praised the promotion of early dispute resolution (Gibbons 2007) and managers have been apologetic when high targets are not met (see ETS 2006:5). Despite the fact that workloads at tribunals have increased hugely (see above), on average 79 per cent of cases went to first hearing in less than 26 weeks in 2006/07 (ETS 2006:5) and for the majority of claimants one would expect that the speedy transition of claims from registration to hearing is very welcome. However, little research has actually been conducted regarding the relationship between speed, quality and costs (see Adler and Gulland 2003:16) and it should not be assumed that this highly valued performance indicator necessarily equates with greater efficiency. Indeed, MacMillan confesses to having heard complaints from professional representatives about ‘excessive efficiency’ which presented problems for them, in that there was not always enough time to prepare for the hearings (MacMillan 1999:46). If this can cause problems for legal professionals, non-represented claimants would undoubtedly struggle too, given that their knowledge of the law and the tribunal system is likely to be less advanced (see below).
This assumption that speed equals efficiency and is desired by all those involved in litigation is compounded by a broader, related, assumption that this one method of processing claims fits the needs and desires of all claimants. Yet, if tribunals exist for users in the way that Leggatt suggests (see above: Leggatt 2001:6), the particular needs of various cohorts are worthy of further investigation, if only to ensure that tribunals ‘are accessible by the people who want to use them’ (Leggatt 2001:6). This assumption that one method fits all is challenged in this section, where it is suggested that for those involved in pregnancy-parenting/workplace conflicts the pressures of time, reflected in a time limit of three months to register a legal action and the strictness with which out-of-time applications are judged, could have a negative impact on their willingness to claim and serve to marginalise them and, in turn, restrict their ability to access justice and, hence, society’s ability to adequately enforce the legislation.
Claims for unfair dismissal and sex discrimination must be registered within three months of the act complained of (ERA 1996 s 111 and SDA 1975 s 76). Those claims which are not settled through ACAS or private settlement are generally heard within 26 weeks of being registered (ETS 2006). In the tribunal study, information relating to the length of time between registration of a claim and the full tribunal hearing was available in 1,343 of the decisions. Most of these cases, 65 per cent, were heard at tribunal within five months of being registered, 49 per cent were heard within four months and 77 per cent of claims were heard within six months of being registered (see Appendices Table 6). In addition, data regarding the timing of dismissal in relation to the pregnancy or birth were available in the tribunal study in 1,188 of the claims (see Appendices Table 5) and show that, for the majority of these women, 79 per cent, the alleged dismissal occurred prior to maternity leave and hence prior to the birth of the baby. These data suggest that, for many of the women claiming pregnancy-related unfair dismissal, the tribunal procedures and hearings would have coincided with the late stages of pregnancy and need to care for, and the inevitable sleep deprivation related to caring for, a newborn baby. This arguably presents this cohort of aggrieved workers with difficulties and dilemmas beyond those, or at least very different to those, experienced by other cohorts. Such dilemmas may include the ultimate choice, following dismissal for a reason believed by her to be pregnancy-related, between enjoying or managing the pregnancy or newborn baby and avoiding unnecessary stress and anxiety at a time of more fundamentally important priorities, or pursuing a claim that will undoubtedly occupy a great deal of time and emotional energy (see Gibbons quote above). These dismissed employees, grappling with the complexities of the law (see chapter 3) and new motherhood, might understandably be exacerbated by the whole ordeal. The disappointment of dismissal and the concern associated with immediate and long-term financial repercussions, especially when coupled with the bio-psycho-social event that pregnancy embodies (Scott and Niven 1996) or the intensity of new parenthood, could clearly complicate the situation in a way that is arguably unique to their situations. With this in mind, the officially sanctioned dedication of tribunals to a speedy resolution of cases epitomises not just an inconvenience for these women, but it could operate so as to restrict their access to justice.
At a wider level, by sanctioning early resolution of claims as the norm, tribunals perpetuate the dominant ideology of motherhood by restricting a pregnant worker’s or new mother’s ability to participate in, or at least to defend her legal right to participate in, the labour market. We do not know for sure what this female cohort would prefer, a ‘missing knowledge’ which is illuminating in itself, but whatever their preferences the tribunal system has only one agenda – that of a speedy resolution to the case – and it is assumed that this caters for their needs. In fact, this standard caters for the needs of the stereotypical ideal unencumbered worker (see chapter 1) whose only, or main, priority is to deal with the matter as swiftly as possible. This is underlined by the fact that tribunals are not keen to postpone or adjourn hearings unless there are exceptional circumstances and by the generally strict approach to ‘out-of-time’ applications (see below). The correctness of the fact that a three-month time limit is applied to ordinary unfair dismissal claims is not being disputed here, but the fact that the time limit is strictly adhered to in pregnancy-related claims is, it is contended, demonstrative of the fact that the experiences of pregnancy and parenting are uneasily and awkwardly being forced into a conventional and male-biased structure. It has been suggested above that such an inflexible approach denies women access to the very system that ought to offer them legal redress and hence it ought, arguably, to be extended, a recommendation that was made by the EOC following its general formal investigation of pregnancy discrimination in the UK (EOC 2005) (see chapter 6).