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.)