sexism

It’s time to call an end to sexual harassment in the City

15 October, 2019 By WiC

In this article, Kaajal Nathwani, Senior Associate, Employment Law, Curwens LLP gives an overview of the law in relation to sexual harassment.

#Metoo

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.

Say no

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.

Silenced

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.)

CONTRIBUTE TO SURVEY BY RIGHTS OF WOMEN ON SEXUAL HARASSMENT IN THE WORKPLACE

Five-point plan to tackle sexual harassment in the workplace

31 July, 2018 By WiC

The Government, regulators and employers are failing in their responsibilities to tackle sexual harassment in the workplace, says the Women and Equalities Committee in their report, following a wide-ranging six-month inquiry.

The Committee finds that sexual harassment at work is widespread and commonplace but there has been a failure to tackle unlawful behaviours, despite the Government’s obligations under international law.
Employers and regulators have ignored their responsibilities for too long, says the Committee, and often legal protections are not available to workers in practice.
40% of women and 18% of men have experienced unwanted sexual behaviour in the workplace [Source: ComRes poll for the BBC].

Putting sexual harassment at the top of the agenda

The report calls on Government to focus on five priorities to put sexual harassment at the top of the agenda for employers:

Introduce a new duty on employers to prevent harassment, supported by a statutory code of practice outlining the steps they can take to do this; and ensuring that interns, volunteers and those harassed by third parties have access to the same legal protections and remedies as their workplace colleagues;
Require regulators to take a more active role, starting by setting out the actions they will take to help tackle this problem, including the enforcement action they will take; and making it clear to those they regulate that sexual harassment is a breach of professional standards and a reportable offence with sanctions;
Make enforcement processes work better for employees by setting out in the statutory code of practice what employers should do to tackle sexual harassment; and reducing barriers to taking forward tribunal cases, including by extending the time limit for submitting a claim, introducing punitive damages for employers and reducing cost risks for employees;
Clean up the use of non-disclosure agreements (NDAs), including by requiring the use of standard, plain English confidentiality clauses, which set out the meaning, limit and effect of the clause, and making it an offence to misuse such clauses; and extending whistleblowing protections so that disclosures to the police and regulators such as the EHRC are protected;
Collect robust data on the extent of sexual harassment in the workplace and on the number of employment tribunal claims involving complaints of harassment of a sexual nature.

Current system is inadequate

Chair of the Women and Equalities Committee, Maria Miller MP, said:

It is utterly shameful that in 2018, unwanted sexual comments, touching, groping and assault are seen as an everyday occurrence and part of the culture in many workplaces.

Government, regulators and employers have been dodging their responsibilities for far too long.

There is currently little incentive for employers to take robust action.

In contrast, there is considerable focus on other corporate governance issues like protecting people’s personal data and preventing money laundering, with stringent requirements on employers and businesses to meet their responsibilities.

It’s time to put the same emphasis on tackling sexual harassment.

The effects of sexual harassment can be traumatic and devastating, and this is reinforced by the personal evidence we received.

The lack of appropriate support for victims within the workplace cannot continue.

The burden falls unacceptably on the individual to hold harassers and employers to account when they will already hesitate to do so due to fear of victimisation.

The current system is inadequate: the tribunal system must provide an effective remedy for employees.

NDAs have their place in settling complaints, but they must not be used to prevent or dissuade victims from reporting incidents as is clearly the case now.

We expect proper regulation of NDAs and that any unethical practices lead to strong and appropriate sanctions.”

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Sexual harassment in the workplace – Call for evidence

13 February, 2018 By WiC

Women and Equalities Committee launches a full inquiry on Sexual harassment in the workplace and is now inviting submissions of written evidence.

Following the one-off evidence session of 31 January on Sexual harassment in the workplace The Women and Equalities Committee is launching an inquiry to consider in more depth some of the issues raised.

As well as assessing the extent of the problem, who the perpetrators are and why it happens, the inquiry will focus on what should be done to tackle harassment more effectively.

Issues the Committee will look at include:

action that the Government and employers can take to change workplace culture, increase confidence to report problems, and make tackling harassment a higher priority
how staff can be better protected from sexual harassment by clients, customers and others
how effective – and accessible – tribunals and other legal means of redress are, and what improvements could be made to those systems
the pros and cons of using non-disclosure agreements (NDAs) in sexual harassment cases, and what can be done to prevent inappropriate use of NDAs.

‘Workplace culture’ needs change in relation to sexual harassment.

Maria Miller MP, Committee Chair said:

Over the past few months there have been widespread reports of women’s appalling experiences of sexual harassment at work.

Our recent evidence session with legal experts, employee and employers representatives painted a stark picture.

Clearly much more needs to be done, both by Government and employers: this inquiry is about identifying solutions.

We need to change workplace culture, keep women safe and provide effective legal remedies.

We also need to understand whether non-disclosure agreements are being abused by legal experts and employers to cover up wrongdoing.

The Committee would welcome evidence on how best to tackle these problems, currently faced by thousands of people at work.

Submission of views

The Committee is now inviting written evidence specifically on:

how widespread sexual harassment in the workplace is, and whether this has increased or decreased over time
who experiences sexual harassment in the workplace, who perpetrates it and what the impact is on different groups
actions that the Government and employers should be taking to change workplace culture to prevent sexual harassment, give people more confidence to report sexual harassment, and make this issue a higher priority for employers
how workers can be better protected from sexual harassment by clients, customers and other third parties
the effectiveness and accessibility of tribunals and other legal means of redress and what can be done to improve those processes
the advantages and disadvantages of using non-disclosure agreements in sexual harassment cases, including how inappropriate use of such agreements might be tackled

The deadline for submissions is Tuesday 13 March 2018.

Further information

Guidance: written submissions

Girlguiding survey shows girls and young women are being held back

7 October, 2016 By WiC

Each year, Girlguiding’s Girls’ Attitudes Survey takes a snapshot of what girls and young women think on a wide range of issues.

A platform to be heard

The survey gives girls’ and young women’s voices a platform to be heard and taken into account at the highest levels of decision-making across the UK. It empowers girls to speak out on the issues that really matter to them and affect their lives today. This major survey, now in its eighth year, canvasses the opinions of over 1,600 girls and young women aged 7 to 21, inside and outside guiding across the UK.

The findings in 2016 build on those from previous years. They give an insight into how girls feel about the specific and emerging pressures facing them today, and what these mean for their happiness, well-being and opportunities in life. Girlguiding’s youth panel, Advocate, leads the development of the survey each year and analyses the results.

Girls are being held back

This year girls and young women tell us that they are being held back from having full lives and from achieving their aspirations. Girls are saying they can’t do the things they’d like because they don’t feel safe or because of double standards on what behaviours are acceptable or what roles are open to them compared with boys.

Yet it’s clear girls are challenging this unfairness.

They are reclaiming the internet to express their views and have a voice, with half of girls saying social media empowers them to speak out.

Calling out sexism

They are calling out sexism where they see it and demanding that girls and women aren’t judged by how they look and have equal opportunities now and in their futures. From as young as seven, girls feel the impact of daily sexist images of women and girls in the media, online and around them. Girls tell us that sexist objectification of women in the media makes them feel disempowered and that gender stereotypes make them feel that their gender will hold them back in life.

Intense pressures – how they look, about fitting in, affording things

They tell us they have to confront intense and unobtainable appearance pressures to be perfect and many say they feel they’re not good enough. Girls tell us that because of abuse online they don’t feel able to have a voice on the things they care about.

They think sexism is worse online and girls are being sent unwanted sexualised images and videos.

Girls also tell us they don’t feel safe to go where they want and face harassment from boys when they are out and about. Girls are changing their own behaviour to avoid being harassed or intimidated.

Girls also tell us they are facing immense pressures at school and beyond. From a young age girls are worried about fitting in.

Older girls tell us they are fearful about finding a job, paying university tuition fees and affording a home. For too many, these experiences reflect the continued decline in their happiness and mental well-being.

Education not fitting their needs

At school, too few girls are getting the opportunity to learn about the role that women have played across different academic subjects or gain the skills they need to live their lives well. Only half of girls feel inspired by their education, suggesting there is still a long way to go in making sure education meets their needs.

A better world

The findings show that girls have a clear vision for a better world. Despite the pressures they face, girls and young women are passionate about challenging these pressures and the unequal expectations they face.

They tell us they want to see more positive images of women and girls around them in the media and in the jobs they aspire to.

Overwhelmingly, girls want to live in a world without gender stereotypes, where women and girls aren’t judged on how they look, where they are safe and where people are not discriminated against.

Despite efforts to silence them through online abuse and everyday sexism, girls tell us they are using their voice to call out inequality.

Girls are using online forums to use their voice, and to connect with others on the things they care about.

Girls are proud of their achievements and are full of ideas about what they want to do in their futures. There are girls who feel they can do anything if they try, feel adventurous, are proud of something they’ve achieved and feel brave.

There are girls who tell us they’ve had a positive experience of school and being online and are happy. Yet much remains to be done so that girls are not adapting their own behaviour and aspirations to navigate an unequal society.

Instead society needs to change to meet girls’ expectations and support them to fulfil their potential. By listening to girls we can address the barriers they face to achieving their aspirations and support them to flourish.

Download the survey

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Previous Girlguiding surveys can be found its website.