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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.)
Despite being nearly two decades into the 21st Century women still experience sexual harassment in the workplace. No, it shouldn’t happen, men need to behave better, but it does and making a complaint, let alone taking the matter further, can be difficult, traumatic even.
Here are some organisations you can contact that may be able to help.
USEFUL HELPLINES AND WEBSITES
Rights of Women – specific sexual harassment help line
List of Law Centres
YES Law – specifically for employer/employee issues
If you want to record incidents, try Talk to Spot, a website and App that’s secure. No “human” sees what you’re saying, but it’s a way of getting it off your chest and ensures you have all incidents recorded. You can also record what you see happening to others.
Some useful tips when reporting sexual harassment
- Very strict time limits apply. You have only 3 months from the date of the discrimination to start a claim in the employment tribunal and only 6 months in relation to education or goods and services.
- If you’re a member of a union get in touch with your Union Representative.
- Check your house insurance for legal expenses insurance (an underused resource).
If you’ve experienced harassment and have (or haven’t) brought a claim against your employer, please share any tips or experiences (good, bad and ugly) you have with us and we’ll add them (anonymously if that’s your choice) to this page.
2 in 5 UK Business Directors Lack Workplace Harassment Training, study finds
Leading ethics and compliance software and services company NAVEX Global® highlighted research finding more than 44 percent of UK business directors have never received training on workplace harassment, and 21 percent have only received one training session, according to the report available here.
Twenty-eight percent of the UK non-managerial level workforce have either never been trained or only received one session on workplace harassment. This represents a significant proportion of the workforce inadequately trained to be aware of and spot harassment, as well as what constitutes such behaviour. The comprehensive report, Tackling Sexual Harassment in the Workplace, indicates UK organizations require a continued focus if sexual harassment is to better addressed.
11pc increase in workplace harassment reports
A promising finding is an 11 percent increase in workplace harassment reports since initial news reports that led to what is now known as the #MeToo movement. Independent research has shown a clear association between increased use of internal hotline reporting systems like those used to report workplace harassment, and improved business performance. The report also found positives in the 57 percent of respondents who stated they expect to improve their training.
It’s reassuring to see an increase in reporting, and employers need to make additional progress with training, procedural changes, awareness and improved company culture, said Bob Conlin, NAVEX Global President and CEO.
Only then will we see a more impactful improvement in our culture. This needs to be supported and led by every organization’s board. Our findings show the higher you move up within a business, the less training and awareness there is of sexual harassment. Given how power and workplace harassment can be a poisonous mix, this is troubling and needs to be addressed.
The report also cites the Young Women’s Trust finding that one in two human resources directors and decision-makers who are women think their workplaces are sexist, and a third of EU women report experiencing sexual harassment at work.
Other key points in the report include:
- Building trust in reporting mechanisms was found to be the most pressing harassment issue in UK organisations, followed by basic harassment awareness
- One in eight large organisations in the UK are aware of unreported sexual harassment in their workplace (Young Women’s Trust)
- The biggest reason cited for not reporting misconduct is fear reports will not be confidential (74%)
We’ve come a long way in the UK and the European workplace, making it safer and more supportive than ever before,” said Conlin.
However, what our report highlights is there’s still a lot of work to be done if we’re to reach our full potential.
Perhaps most shocking of all the Report’s findings are that:
- 1 in 4 workplace harassment perpetrators are customers or clients
- 1 in 2 female HR directors think their workplaces are sexist
If you’ve experienced harassment in the workplace you can report it, confidentially, to TalkToSpot
Government failing to address the issue
Following a 9 month inquiry into sexual harassment of women and girls in public, MPs have concluded that while the Government has pledged to eliminate sexual harassment of women and girls by 2030 under its international obligations, there is no evidence of any programme to achieve this.
Moreover, sexual harassment is almost entirely absent in the current cross-departmental strategy for tackling Violence Against Women and Girls.
The Government’s report, published today, finds that harassment in public places is relentless and becomes ‘normalised’ as girls grow up, contributing to a wider negative cultural effect on society.
The report says that social attitudes, including disrespect of women and an assumption by some men that they can behave in this way, underpin sexual harassment.
The report outlined seven key recommendations to tackle street harassment:
- Force train and bus operators to take tougher action against sexual harassment and block the viewing of pornography on public transport
- Ban all non-consensual sharing of intimate images
- Publish a new “Violence Against Women and Girls” strategy
- Create a public campaign to change attitudes
- Take an evidence-based approach to addressing the harms of pornography, along the lines of road safety or anti-smoking campaigns
- Tougher laws to ensure pub landlords take action on sexual harassment – and make local authorities consult women’s groups before licensing strip clubs
- Make it a legal obligation for universities to have policies outlawing sexual harassment
Chair of the Women and Equalities Committee, Maria Miller MP, said:
Sexual harassment in public places is a regular experience for many women and girls in the street, in bars and clubs, on buses and trains, at university and online. It is the most common form of violence against women and girls and the damage is far-reaching. And yet most of it goes unreported.
It can make women and girls scared and stressed, avoid certain routes home at night or certain train carriages, wear headphones while out running; women feel the onus is put on them to avoid ‘risky’ situations. It is not acceptable that women have to change their behaviour to avoid sexual harassment. It has a wider effect on society, contributing to a culture in which sexual violence can be normalised or excused. All of this keeps women and girls unequal.
The #MeToo movement shows that we must confront some deeply uncomfortable truths about our society and the attitudes some men hold. Laws alone cannot solve the cultural acceptability of sexual harassment. That is why we have set out a series of practical measures that Government, public transport operators, local authorities and universities should implement immediately. Public places must be made safe for all women and girls.
Majority of young men ‘more likely to challenge sexual harassment’ since #MeToo
Half of all people say that ‘what is acceptable has changed’
But older men – and the law – are lagging behind
New research from The Fawcett Society has found that one year on from the outpouring of #MeToo stories, there has been a significant shift in attitudes to sexual harassment. According to the research released today and supported by the law firm Hogan Lovells, the majority of people (53%) say that since #MeToo what is seen as acceptable has changed.
The biggest change has taken place in the 18-34 age group with over half of young people saying they are now more likely to speak up against sexual harassment, including 58% of young men. Older people are significantly less likely to call out inappropriate behaviour or have a conversation about sexual harassment – but they do think the boundaries have changed. 56% of men aged 55+ say that what other people think “is and isn’t acceptable” has shifted in the last year.
The Fawcett Society has accused the Government of lagging behind society when it comes to tackling harassment. Despite the scandal surrounding harassment at the Presidents’ Club dinner in January this year, legislation which would protect women from harassment by a client or a customer has still not been introduced.
Key findings of the report:
- Overall 28% of men and 34% of women have had a conversation with someone of the same sex about sexual harassment
- Only 16% of men aged over 55 have had a conversation with someone of the same sex about sexual harassment compared with 54% of men aged 18-34
- Awareness of the #MeToo hashtag was high, with 43% of women and men saying they had heard of it, and 85% of those who had heard of it able to identify the hashtag
- Knowledge of the movement has an impact – people who are aware of #MeToo are one and a half times more likely to say that the boundaries of acceptable behaviour have changed with 69% of those who were aware of #MeToo agreeing compared to 46% who were unaware.
Sam Smethers, Fawcett Society Chief Executive, said:
This survey confirms that we have had a year of disruptive attitudinal and behavioural change and that was long overdue. Other evidence shows we are also still seeing significant numbers of women being sexually harassed at work. Now it is time for tougher legislation and real, lasting culture change.
We need to bring back section 40 of the Equality Act which would outlaw harassment from customers and clients. But we also need to go further and place a new duty on large employers to prevent discrimination and harassment. Employers have to take responsibility for their own workplace culture.
“Older men have to be part of the change because they often hold positions of power. But their attitudes are lagging behind. They don’t seem to realise the #MeToo movement is also about them.”
Sarah Green, Co-director, End Violence Against Women Coalition, said:
We are a year on from the truly global explosion of #MeToo, first started by young black women who found people looked the other way when they called out sexual abuse. In the UK, despite the number of women coming forward to call out sexual harassment at work, and ever increasing numbers reporting sexual assaults to the police, we have a justice system that is resisting and has been shown to be putting women on trial for their choices and even the text messages they send their friends on their phones, rather than the perpetrators who need to be held to account.
The women in film and the arts who stood up to say #MeToo over the last year and who built TIME’S UP as a way for us to resist together, have made it possible to have a different conversation about the daily reality of this abuse, and how it is not inevitable. The justice system, and everyone who minimises or makes excuses for this behaviour, will not be able to do so with cover for much longer. The results of the Fawcett Society’s new research are testament to the impact of these movements.
The report recommends that the Government:
- Reintroduces “third party harassment” laws, so that employers have a duty to protect women from clients, contractors, or patients who harass;
- Ensures that forthcoming Relationships and Sex Education guidance refers to gender-based violence like sexual harassment;
- Delivers on a recent commitment to review hate crime legislation and make misogyny a hate crime;
Introduce a new duty on large employers to prevent discrimination and harassment in their workplaces.