The Employment Tribunal's recent decision to dismiss Aisling Sykes' sex discrimination claim against J P Morgan while upholding her claim for unfair dismissal, raises interesting strategic points for employers faced with these claims.
First, it should be remembered that Sykes is unusual in having proceeded to the hearing. The cost to an employee of doing so is generally prohibitive. Despite winning the unfair dismissal case, Sykes will be unable to recover a figure anywhere near the legal costs bringing a case such as hers normally demands. Although employees are able to apply to the Equal Opportunities Commission for financial assistance with sex discrimination claims, the Commission prefers to support women who, without its assistance would be unable to proceed and is therefore, unlikely to support a senior, high-earning woman working in the City.
Employers defending a claim like this may be reassured that the employee's lawyer will in all likelihood advise her to settle before the hearing for a sum equal to the maximum (limited) award for unfair dismissal to avoid the risk of incurring substantial legal fees by pursuing what will almost always be a risky claim. Discrimination claims are hard to fund and notoriously difficult to prove.
However, Sykes chose not to settle. So, when faced with an employee who is prepared to proceed, and there will be an ever-increasing number of Ms Sykes' in the future, how can an employer deal with these cases without the publicity and cost of a hearing ?
JP Morgan has spent a great deal of time and money on this case. Employers should be asking their lawyers how they can save money on this kind of litigation. This means they should be reviewing their equal opportunities policies, training and management (including homeworking). If they are faced with a claim, they should pay their lawyers to reach a confidential settlement. There are better ways of resolving these disputes then spending weeks in a tribunal.
Second, the reports of the decision indicate that the Tribunal has opened the door to employers to argue in defence to an indirect discrimination claim that it was up to the female employees to get their childcare in order. It seems that employers may now expect senior women who can afford one or more nannies to employ them and that there are some jobs where the possibility of increased homeworking may not be entertained. Advice most be sought on this point as recent decisions have indicated the opposite.