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In this article, Kaajal Nathwani, Senior Associate, Employment Law, Curwens LLP gives an overview of the law in relation to sexual harassment.
Since the Harvey Weinstein scandal broke in October 2017, the #MeToo hash tag continues to trend across social media on a global scale revealing the widespread prevalence of sexual discrimination and harassment in the workplace.
The floodgates have stayed open with countless scandals dominating the media, outing even the rich and famous, bringing both the unsuspecting and respected professions into disrepute.
British actresses Emma Watson and Kate Winslet, amongst others signed an open letter of intent at the height of the furore stating:
This movement is bigger than just a change in our industry alone. This movement is intersectional, with conversations against race, class, community, ability and work environment, to talk about the imbalance and abuse of power.
They, together with others have called for an end to what appears to have been ‘tolerance’ of sexual harassment, abuse and discrimination across all industry sectors, instead of saying no.
Thousands of women have found the strength through the public rise of the movement and the countless support groups which have been created, to speak out about the appalling extent of discrimination they have suffered. However there remain an even larger number who are still too scared to speak up, and continue to believe what they went through could never truly be (sexual) harassment; the silent victims. Many struggle to deal with the mental and physical effects of discriminatory treatment which is often the reason why they stay quiet for so long.
What is sexual harassment?
The Equality Act 2010 generally defines sexual harassment as unwanted conduct related to sex (behaviour) which has the effect of violating dignity or creating a hostile, degrading, humiliating or offensive environment.
There is a second definition which relates to unwanted conduct of a sexual nature which has the same purpose or effect as in the general definition. Whilst there is clearly some overlap, conduct of a sexual nature covers verbal and non-verbal physical conduct including unwelcome sexual advances, touching, forms of sexual assault, jokes, display of pornographic photos or images, and sending emails with content of a sexual nature.
Even if the conduct may not have been carried out by the perpetrator with the ‘purpose’ of having that effect (for example: ‘joke’ messages, or expecting the female to always pour the tea in meetings), if it has that ‘effect’ (someone is offended by it and does feel violated), it is deemed unlawful, if it is ‘reasonable’ for the conduct to have had that effect.
This gives another layer to the law, whilst this is considered a controversial test the law prevents those who may be oversensitive making claims in situations which no one else would consider as offensive.
What is unwanted?
Certain types of conduct are deemed unwelcome, unless invited. With less obvious behaviour, case law has provided guidance that the question to be asked in the context of each individual situation is whether the person, by virtue of their words or behaviour, has made it clear that they found the conduct unwelcome. There is no need to draw public attention, for example walking out of the room may be sufficient to demonstrate that the conduct was unwelcome. The test is that a “reasonable person” needs to understand that the recipient was rejecting the conduct.
On our doorstep
Whilst the #Metoo movement is global, the City of London is no stranger to the culture of sexual harassment and bullying in the workplace. Most recently, the insurance giant Lloyds of London has been publically vilified for condoning and even covering up an institutional culture of sexual harassment. A report revealed that 1 in 10 staff had witnessed sexual harassment whilst working for the City veteran.
A feature by Bloomberg Businessweek contained testimonies from female executives, with one referring to the office environment as a “meat market”, and another saying the harassment against women was “constant.” When has it ever been acceptable to hire the most attractive female assistants, or call females names such as “girls” or “totty”? Never is the answer, but this is the carry on, day in day out.
The legal sector is also vulnerable to allegations of harassment. Historically renowned as a male dominated profession, there continues to be a gender imbalance at the top. Several women were interviewed by the Financial Times and one lawyer is reported to have said;
You don’t want to be labelled a troublemaker, someone who is not part of the banter, part of the club”; whilst a pupil barrister who endured groping by a senior staff member as well as a barrage of bouquets and sexually explicit letters from a client who became obsessed with her said “It never occurred to me that complaining was a possibility.”
Last week, the Solicitors Disciplinary Tribunal heard that a male magic circle Partner groped an ‘exceptionally drunk’ junior female colleague after a night of drinking. The female in her twenties told the tribunal that on the same evening, he commented on her body, touched her and climbed on top of her after entering her flat following a shared taxi ride, to use the bathroom. When he continued to touch her she said she ‘tried to stop him’ but ‘couldn’t really push him off’.
The victim said that the events had left her feeling “numb” and not “brave, strong or senior enough” to raise a complaint during her time at the firm; an all too familiar story.
As the case concluded this week, the tribunal panel found that the Partner had breached two of the 10 Solicitors Regulation Authority principles: that lawyers must act with integrity; and behave in a way that maintains the public’s trust in both the profession and in the provision of legal services and ordered that the male partner pay a fine of £35,000, court costs of £200,000. He subsequently resigned from his position.
How can the law change
The Government Equalities Office consultation on Sexual Harassment in the workplace concluded on 2 October 2019. One of the questions asked was whether there should there be a change in the law, to extend time limits to bring claims of sex discrimination in the Employment Tribunal?
Surely, an extension to the current 3 month time limit (excluding any extensions applied by participation in the ACAS Early Conciliation process) is needed to account for the reality of sexual harassment and the impact on victims which inevitably results in months if not years before they feel strong enough to speak out, let alone bring any legal claim? Just look at the Weinstein allegations which recently surfaced but which stem back decades; time which has stood still for his many victims. Time should not play a factor in the ability to have access to justice in such sensitive circumstances.
The consultation report documents that anecdotal evidence suggests in cases of sexual harassment, that it may be some time before an individual comes to terms with the incident, and/or is able to even identify it as an unlawful (often criminal) act. Once someone has identified an act as unlawful, and decided that they wish to take formal action, their first step will be to engage their organisation’s internal grievance process. If the internal process is unsuccessful, they may then seek legal advice before progressing further. All of this could take months, if not years.
Whilst there is a compelling case for extending the Employment Tribunal time limit for discrimination cases, especially Sex Discrimination and Harassment, the real question remains, how long will ever be enough? Should there be a time bar at all?
If you have been a victim of sexual harassment or discrimination in the workplace, you are advised to raise an internal complaint to your employer via the grievance procedure and/or seek legal advice. In certain circumstances, it may be appropriate to report the matter directly to the Police.
The current time limit for issuing a claim in the employment tribunal is 3 months less one day from the alleged act of discrimination. It is mandatory to initiate the ACAS pre claim conciliation process before legal proceedings can be issued. Extensions to the three month time limit will be applied depending on the time spent in the early conciliation process. For further details please see the ACAS website.
Sources of help
Sexual Harassment Help Line
(Confidential Help Line run by Rights of Women)
Talk to Spot
(A confidential way for you to log experiences of harassment. Some companies subscribe to and use Spot internally, but you can use it for free as an individual.)
A global survey of 250 employees by professional training company Roar Training has revealed that 71% of employees have turned down opportunities due to lack of confidence.
What’s more the research found that 51% of employees have turned down public speaking opportunities because they were worried about their performance and 16% of have even said no to a promotion because they didn’t feel they were ready.
In business we are repeatedly required to do things which require a certain amount of self belief. Standing on a stage in front of crowds, confidently selling services to strangers and sharing unfiltered ideas to coworkers can, for many of us, feel incredibly daunting.
Overcoming our fear of exclusion
As humans, we are innately social animals. In his book “Social, why our brains are wired to connect” neuroscientist Matthew Leiberman writes “our brains evolved to experience threats to our social connections in much the same way they experience physical pain. By activating the same neural circuitry that causes us to feel physical pain, our experience of social pain helps ensure [our] survival.” Our instincts are for inclusion; to be excluded, to be socially humiliated or outcast is to fear for our survival. Research tells us that “a fear of exclusion makes the motivation to protect oneself from social threats dominant”.
In other words, the nerves that so many of us feel when faced with public speaking, pitching, meetings or presentations are a completely normal, rational response to an objective social threat and it is within our nature to actively avoid these threats.
Men lack confidence, too
It is worth noting, that when averaged to the total number of responses, of the 71% who responded that they have turned down opportunities because of confidence, 51% were women and 49% were men. Of the 16% who have turned down a promotion because they did not feel ready, 58% were women, 42% were men. This supports that whilst there are social constructs that have, and continue, to hold women back in the workplace, a fear of exclusion, of not doing it right, or getting it wrong, is very much a human response.
Seniority doesn’t ensure confidence
Surprisingly, this does not vary hugely according to levels of seniority. It makes sense to think that early in your career new experiences, such as presenting your ideas to your boss, could be daunting, though managers, team leads and businesses owners were within the 71% of have turned down opportunities because of confidence.
Commenting on the findings Kirsty Hulse, Founder of Roar Training said
I believe, passionately, that we need to start acknowledging this silent fear that so many of us carry around to prevent us from feeling as though it is an internal failing on our part, rather than just a rational response to real world threats. If we do not start to openly discuss and address confidence issues in the workplace, we miss out on a rich tapestry of ideas that come from a plethora of voices. Our stages will miss out on over half of divergent ideas because we are failing to reassure those who turn down speaking opportunities for a fear of failure. Having worked with hundreds of people on their confidence over the past couple of years, what always surprises me is how most people are convinced that it is just them who feels that way.
Confidence can be developed
Confidence is not just a thing that some people have, it can be learnt, nurtured, developed and drawn upon at key moments. We can manage our nerves, regulate our emotions and develop new patterns of thinking. As neuroscience continues to uncover more of what we understand about the brain and how this impacts our behaviours, I would go as far as to say that the development of confidence within teams will stop being an elusive skill that we silently all wish we had more of and a practical skill that we work to actively attain.
Women are a key part of a growing contingent workforce of freelancers, consultants and part-timers. Despite numerous government policies to attract more mothers back into the workplace, retention is still a significant struggle.
To find out why this is the case, John Williams, Head of Marketing at Instant Offices, explores how employers can tackle retention issues and attract workforce of mothers.
Several data collected indicates working mothers who return part-time, combining professional careers with raising a family, are increasingly frustrated by the type of space they work in. The research shows that the modern workplace often fails to cater for their needs as they face the pressures of combining busy working lives with lifestyle and family obligations.
Blending lifestyle and work for working mums
According to UniSpace, lifestyles and workplaces are blending together, as the working day demands more of our time and technology encourages an “always available” work culture. For mothers, in particular, Office designers have started to recognise the pressure to achieve a lifestyle and workplace balance – particularly for those who are in part-time roles and arguably have to juggle time more than ever before
The data from WorkingMums.co.uk indicates that the number of female workers seeking part-time work, at all levels of the company, is increasing rapidly, but that the number of available opportunities is failing to increase at the same rate.
What do the numbers say?
From a survey of over 2000 women, it shows nearly one in five (18%) UK working mothers have been forced to leave their jobs because a flexible working request has been turned down.
Breaking down the statistics, around 12% said their employer did not even seem to consider their request at all, and over a quarter (27%) said the reason given for turning down the request was not one which is allowable under flexible working legislation.
A further 41% on maternity leave said the refusal of flexible working would mean they might not return to their job, while 50% said they had not even discussed flexible working before going on maternity leave. In fact, a whopping over half of (60%) of women have admitted to changing jobs after maternity leave.
The survey also shows the availability of flexible working is the key career development issue for working mums, with homeworking being valued highly, particularly for those wanting to work full-time. Other barriers included childcare costs – half of women currently on maternity leave said childcare costs could prevent them from returning to work.
The rise of female workspaces
The growth of the contingent workforce has been one of the key drivers behind the move towards coworking. The rise of female-specific coworking spaces is a significant extension to this trend and highlights some of the limitations of conventional space for female workers.
Due to the lack of flexibility, the introduction of female only workspaces such as The Wing, a US based women-only workspace have been created to cater for busy mothers and women by featuring facilities from onsite creches, childminding to gyms, hairdressers and cafes.
While these spaces may initially be viewed as coworking spaces, their ultimate objective is to become networks that facilitate female entrepreneurship and support women at every stage of their journey.
Creating a balanced workplace
Following responses from a survey by Instant Offices, here are some tips that employers should consider in creating a balanced workplace for all employees:
- Flexible Policies that benefit all parents: Offering a number of ‘family days’ for both mum and dad to attend assemblies and doctor’s appointments, etc… would enable a fairer system for all involved.
- Choice of Mobile Working Options: Flexible working with multiple offices/sites and 4G connectivity would greatly help allow fully mobile working for parents who are on the go.
- Work-life by balance and flexibility for all employees: Providing company-sponsored childcare schemes that would include on-site childcare would improve quality and offer a more practical solution. This includes providing more private space to facilitate phone calls to carers, more flexible hours to work around pick up/drop off hours, and a change in working hours during long summer holidays.
Providing integration of workplace and lifestyle elements in the workplace helps to alleviate pressure on work/life balance – and brings to light recognition of the demands the working day places on them.
A recent study by learning & development training provider, The Hub Events, has revealed that women in the UK are experiencing an epidemic of self-doubt.
90% of UK women admitted to feeling inadequate or incompetent at work, and 73% don’t feel they deserve their current success.
Of these, 17% said that they experience these feelings often or all the time.
These findings are particularly staggering as the responses came from 1,000 UK adults who are currently employed and have at least 3 years’ experience in their field of work.
‘Imposter Syndrome’ is a psychological pattern which causes chronic self-doubt and overwhelming feelings of inadequacy, often despite repeated success and accomplishments.
Of the women surveyed, only 27% were aware of ‘Imposter Syndrome’, however most respondents said they had experienced its effects.
Over half of the women surveyed (51%) admitted to experiencing the kinds of intrusive thoughts that come with ‘Imposter Syndrome’.
Of those experiencing intrusive thoughts;
- 37% believe it is only due to luck/chance that they have achieved success
- 1 in 4 (24%) think that one day their boss or colleagues will realise they are under qualified (despite experience/qualifications)
- 1 in 4 (24%) think they only got a job or promotion because the workplace was ‘short on candidates’
- 15% don’t think they deserve the praise or compliments that they receive about their success at work
How do we stop the crisis of self-doubt?
Good mental health is crucial to a happy and successful career and personal life, and sufferers of ‘Imposter Syndrome’ may be at increased risk of anxiety – so what can employers do to eliminate it?
- 3 in 5 (60%) respondents want to see more regular positive & helpful feedback on staff performance
- 44% want employers to create a more open environment where staff are encouraged to talk about the challenges they face
- 43% believe providing adequate coaching & mentors for staff will help
- 2 in 5 (41%) want to ensure management staff are trained to assist with their employees’ anxieties and self-doubt
- 35% think employers should provide access to mental health services
Christine Macdonald, Director of The Hub Events, said;
Despite having relevant skills, experience and qualifications, some women still feel overwhelmed by the feeling that they will one day be exposed as a ‘fraud’. The burden of this worry can end up holding them back.
Simply talking about the fact that ‘Imposter Syndrome’ exists, and that it’s a lot more common than we think, could be a huge relief to people who are gripped by these self-doubts.
Organisations can help a lot by encouraging openness, opportunities to develop and realistic expectations. They can also help by ensuring their management staff are all fully trained to mentor and assist employees and understand the importance of positive feedback.
Research conducted by professional training company Roar Training has uncovered the current state of inequality in the workplace. Evidence-based practical steps from the company aim to combat inequality and help both men and women become better allies.
The study of 600 employees from across the globe revealed that 54% of women believe that their gender has negatively affected their career progression.
In fact, 47% of men don’t believe that women are treated equally in the workplace, and 31% have experienced a co-worker being treated unfairly because of her gender.
The research collated by Roar Training’s founder Kirsty Hulse and Marketing Analyst Sarah Gurbs aims to highlight the issues women face at work and provide evidence-based practical steps for men and women to identify what it means, and how to be a positive ally.
How do women currently perceive inequality in the workplace?
- 54% of women believe that their gender has negatively affected their career progression.
- 51% of women report a general sense of wanting to “be believed” when they discuss or report inequality.
- 27% of female respondents have been actively supported by a male coworker when being treated unfairly in the workplace. However, 56% were not actively supported and 17% unsure.
- 92% of women want an open dialogue, where issues can be addressed together, discussed on a case by case basis.
How do men currently perceive inequality in the workplace?
- 31% have experienced a co-worker being treated unfairly because of her gender.
- 64% of male respondents said that female co-workers are offered the same opportunities as them and 10% believe their female co-workers are offered more.
- A large majority (91%) respond that gender equality is either important, or extremely important to them. However only 71%, actively support gender equality in the workplace.
Commenting on the findings Kirsty Hulse, Founder of Roar Training said
The route to both achieving gender parity in the workplace, and ensuring those within businesses feel their is a commitment to this is undoubtedly nuanced, complex and subjective. This research suggests there is an agreed starting point when addressing the issue of gender equality in the workplace.
There is seemingly no “rule” as to whether sexist behaviour ought to be openly called out, or the role of male allies is to facilitate positive change in the background. This is entirely subjective to the individual, and seemingly differs depending on which stage of their careers they are in. Based on this, the most effective male allies are those whom discuss openly their biases, actively listen to their female coworkers and ask how their female colleagues would best like to address these issues.
- Listen and believe what is being reported. Many women reported that their male co-workers do not “believe” how they feel, which is supported by a disparity between female reporting how they feel in the workplace, and male perceptions.
- Be awareness of bias that may be informing actions and decisions is cited as important for both men and women to begin working towards true gender parity.
- Create an open dialogue so that issues can be addressed according to a specific individuals needs.