Fundamental to a society governed by the rule of law are the principles of access to justice and equality of arms. In simple terms, individuals must have a practically accessible way of vindicating their rights. This includes if necessary through court or tribunal processes.
What is justice in the legal context?
One key aspect to access to justice is the financial ability to instruct lawyers to advise in relation to potential disputes and to act on an individual’s behalf.
In the criminal sphere, despite well-publicised confrontations between the profession and the Government in light of reductions to the legal aid budget, it is generally accepted that the public should bear the cost of criminal defence.
In light of the huge impact criminal proceedings can have on an individual, including the loss of reputation and deprivation of liberty, this is rightly seen as a public good.
The difference with harassment at work
The same is not the case in employment proceedings. Where, despite the fact that they can have almost equal deleterious impacts on reputations and livelihoods (albeit without the risk of incarceration), legal aid is only available in utterly exceptional circumstances.
As a result, often vulnerable people are forced to dissipate savings and borrow from family in order to bring employment tribunal claims that might relate to matters as serious as sexual harassment or other unlawful discrimination.
Legal representation is expensive anyway, and even more so in the City
Indeed, even City professionals are often shocked to discover that the costs of proper representation by employment solicitors. This means that finding the relevant counsel can be challenging to meet, and can run to five-figure costs with recovery even in the case of eventual success seen as the exception rather than the rule.
A new charity steps up to tackle the issue of sexual harassment in the City
Given these difficulties, the founding of Legal Aid for Business Diversity – a charity dedicated to supporting and funding individuals bringing sexual harassment and other discrimination claims – is an encouraging and positive development.
The charity has been founded by Nathalie Abildgaard, a former City fund employee, who is bringing her own claim in the employment tribunal after allegedly being sexually harassed by her manager at her former employer.
Founded upon personal experience
Ms Abildgaard has spoken of the huge stress that employment claims can impose on the employee, and her desire to support others who lack the resources to take on employers with access to elite City law firms.
Ms Abildgaard’s new venture has already drawn praise and support from prominent parliamentarians including Jess Phillips MP and Jo Swinson MP, who have both campaigned on equality and discrimination issues.
Victims are empowered
The potential for initiatives such as Legal Aid for Business Diversity is clear. Claimants who have access to a secure source of funds are less likely to feel pressured to settle early for fear of inevitable defeat at the hands of extensive and expensive legal teams acting for their employers.
In turn, an employer who knows that a claimant is properly funded is more likely to engage with a conciliatory process that avoids a costly and public tribunal battle.
Fostering a deeper cultural change
Indeed, greater equality of arms in the employment tribunal need not increase the number of claims that proceed to a full hearing.
As news spreads of an increase in funded discrimination claims – particularly in the City where employers are often able to out-gun claimants in terms of legal costs – this is likely to heighten the motivation to institute cultural change that reduces the number of claims overall and thereby avoid costly litigation.
“Increased attention to sexual harassment and discrimination is part of a cultural shift that presents an opportunity for greater equity in our society but also is an opportunity for businesses to use the risk it engenders to become more productive and positive workplaces.”
Establishing legal safeguards for employees boosts productivity and wellbeing
Multiple studies and consultancy strategies demonstrate that happier workplaces are more productive and successful on average.
“By making employees feel valued and treated fairly, businesses can increase their profitability and positive impact in the wider economy. This should extend to the fair treatment of employees – including departing employees – who raise complaints and concerns regarding sexual harassment and discrimination.”
Taking these issues seriously reassures employees and boosts productivity
In doing so, employers can send a powerful message to all of their team that such matters are taken seriously and that valid complaints will be acted upon.
Through embracing the cultural change in wider society and prioritising equity in dealings with current and former employees, City firms and others will potentially be able to engage with Legal Aid for Business Diversity in a collaborative rather than confrontational manner.
Such an approach has great potential to strengthen the interests of complainants and the productivity of business.