#MeToo

No one will have missed the multiple sexual assault and harassment allegations against Harvey Weinstein in Hollywood hitting the headlines late in 2017. This prompted the “Me Too” movement, with over half a million women across the globe using #MeToo on various social media platforms in the first 24 hours alone, helping to demonstrate how wide reaching yet under reported sexual harassment has been historically. This in turn reached millions of people, with celebrities, many more women, and also men adding their experiences of abuse from those frequently in positions of power and often in the workplace.

Fast forward to January 2018 and two more stories. The Financial Times exposed shocking allegations of sexual harassment towards hostesses at the men’s only Presidents Club’s annual dinner at London’s Dorchester Hotel. This was followed a day later by a report by The Stage newspaper publishing survey results showing that almost a third of theatre professionals in the UK have experienced sexual harassment at work. The newspaper had surveyed 1,050 people working in the industry, with 31% saying they had encountered sexual harassment. 8% claimed to have been sexually assaulted at work, and 67% of people who had suffered some form of harassment or bullying at work did not report it. Perhaps the most troubling statistic was that when incidents of sexual assault were reported, no action was taken in four out of five cases.

The #MeToo movement has not increased incidents of sexual harassment, but it may well increase reporting of inappropriate behaviour in the workplace as employees feel more empowered to speak out. It is important for employers to handle situations sensitively and professionally.

Harassment The Legal Position

There are three definitions of harassment under the Equality Act 2010:

  • The general definition of harassment "related to" a protected characteristic, which applies to all protected characteristics (other than marriage and civil partnership, and pregnancy or maternity).
  • Conduct of a sexual nature (including but not limited to unwelcome sexual advances, requests for sexual favours, engaging in other unwelcome verbal, non-verbal or physical conduct of a sexual nature, subjection to obscene or other suggestive comments and sexual jokes or images).
  • Less favourable treatment because of an employee's rejection of or submission to harassment of a sexual nature or harassment related to sex or gender reassignment.

In terms of the general definition of harassment, a person harasses the victim if they engage in unwanted conduct related to a protected characteristic, and the conduct has the purpose or effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. 

In respect of the other two forms of harassment under the Equality Act, there is also a requirement for the unwanted conduct to have the purpose or effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. 

Perception of the Victim

In deciding whether conduct has the effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment, employment tribunals will take into account the victim’s perception, the circumstances of the case and whether it is reasonable for the conduct to have that effect.  

Employment tribunals will give particular regard to the subjective perception of the person making the complaint. Thus, for example, where a woman regards as sexual harassment conduct to which most other women would not take exception, provided the employee has made it clear the conduct is unwelcome, any repetition may amount to harassment. However, it is important to remember that one-off incidents are capable of being harassment, the victim does not always need to make the harasser aware that the conduct is unwanted. Many forms of conduct are objectively hostile or offensive and these do not require the employee to indicate they are unwelcome before they may constitute harassment.

Further, it is unlawful for an employer to instruct, cause, induce or help someone (for example an employee or agent) to discriminate against, harass or victimise another person, or to attempt to do so. As well as sexual harassment itself, the law also prohibits unfavourable treatment because an employee has either rejected or submitted to harassment. For example, if an individual rejects their boss’s advances and is denied promotion in spite of being the best fit for the job, or a consensual relationship comes to an end and one of the parties is ostracised and victimised.

Change in Culture

Sexual harassment is more often than not about power rather than sex, making it difficult for victims to speak out. Often employers have found complaints difficult to address for this reason as well, particularly if the perpetrator is a key person to the business.  However, if this is the case, then there is a clear requirement for a culture change.  Employers should also never accept the defence that the alleged harassment was ‘just a bit of banter’. This defence does not go down well with Tribunals, and again suggests the need for a cultural shift, and training at the very least.   

Vicarious Liability

Employers are vicariously liable for employees’ actions ‘in the course of employment’. This definition can be very wide, potentially including not just the office or factory floor, but can be the Christmas party, training days or conferences. Employers need to be able to demonstrate they have taken ‘all reasonable steps’ to prevent the conduct. Regular training for managers and employees is advisable. There is a need to make sure everyone is aware of expected standards of behaviour, and have anti-harassment and equal opportunities policies readily available for all employees. It is advisable to promote care in the way employees interact with each other, together with highlighting the importance of people’s perceptions. The policies should also set out how to raise a concern, how the organisation will address it (outlining options from the very informal, through mediation, to more traditional grievance and disciplinary procedures) and timelines. It is advisable to have a dedicated confidential reporting process to encourage people to speak out if they have any concerns.

In part 2 of this blog, we will be looking at how to appropriately investigate and address complaints of this nature, so watch this space!

 


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Author: Arwen Makin

After studying law at Cambridge University, Arwen trained at leading national law firm Mills & Reeve, qualifying into their employment team in 2002. Arwen has extensive employment law experience, having advised both employers and employees on a wide range of employment issues. Prior to joining ESP she previously worked for a number of years providing advice and representation to both trade unions and their members, and has a particular expertise in the education sector. Due to her diverse experience she is ideally placed to give advice in relation to professional conduct and regulatory matters.