14 Nov 2018

A year after the #MeToo movement started, sexual harassment at work is still in the news on a regular basis, most recently in connection with the allegations against Sir Philip Green. He was identified in the House of Lords by Lord Hain as being the businessman who had obtained an injunction in the Court of Appeal to stop The Telegraph publishing details of claims of sexual harassment, racial discrimination and bullying made against him by employees.

Background

Is your company already applying or considering applying for a top employer or best workplace award? If so, then notwithstanding your potential legal liability, you need to ensure that your employees' dignity at work is protected and that complaints of harassment can be raised without fear of reprisal. Companies that do not deal seriously with harassment will not be seen as a great workplace by their staff, particularly in the current climate. This will impact adversely on your company's culture, employees’ morale and ultimately their productivity. Your company's stated values could be used against you in an employment claim if you do not adhere to them in practice.

Prevention is better than cure. Pro-active measures should be taken to prevent harassment from occurring, rather than having to deal with the fallout from a crisis after the event. This will increase your company’s chances of successfully defending a harassment claim. If harassment does occur, the incident needs to be dealt with swiftly and not brushed under the carpet because, for example, it involves a senior employee who is a key rainmaker for the company. 

Litigation involves significant management time and legal costs, which are usually irrecoverable. Compensation is unlimited. Claims also lead to adverse publicity and damage employee morale. 

The main difficulty with sexual harassment complaints and cases is that one person’s definition of harmless office banter or friendliness may be perceived by the recipient as offensive and intimidating behaviour of a sexual nature, which creates a hostile working environment for them. It is the subjective perception of the victim in a sexual harassment case that the employment tribunal will consider. 

The rule of thumb test that I give to those accused of harassment is that if they would be embarrassed if their wife or partner knew what they had done (and I have yet to come across a male client accused of harassment who has not asked me to ensure that their wife does not find out about it), or if they would want to protect their daughters from being on the receiving end of such conduct, then their actions will invariably constitute sexual harassment. Another subtlety is that comments that female colleagues make to each other as a matter of course such as "you look amazing in that dress, it really shows off your figure”, could easily constitute sexual harassment if made by a man to a woman. 

Many cases involve older men who have not grown up with the culture of political correctness that now prevails. Some of them find it difficult to comprehend that comments that may have been acceptable 30 years ago are no longer appropriate in today’s modern workplace and could expose both them individually and their company to legal claims and adverse publicity. Anti-harassment training and one to one tailored coaching and even giving such managers a female manager as a mentor is key to helping such senior individuals change their ingrained behaviour (which will take time), and to understand the risk management issues involved. 

At a time when more female graduates are entering professions than ever before, and new graduate/intern positions in professional fields are like gold dust, senior managers who are in a natural position of power and authority and who require their junior staff to work late hours into the night must ensure that they do not abuse that power, so as to sexually harass junior staff. Companies need to ensure that all members of staff clearly understand what constitutes sexual harassment, have clear policies and training in place and a strong support system for victims of sexual harassment. Some city law firms are setting up whistleblowing hotlines for sexual harassment, which are manned by an external third party organisation. How many companies incorporate in their leadership training programmes specific anti-harassment training? If they don't, they should.

Sexual harassment often arises in traditionally male dominated areas and departments, which can be pervaded by a macho culture involving male orientated bonding events and corporate hospitality. 

Companies should be aware that specific groups are particularly vulnerable to sexual harassment, including divorced or separated women, new entrants to the labour market and homosexual, bisexual and transgender men and women. Sexual harassment is as likely to be perpetrated amongst managers of the same level as between junior staff and managers. Women can also sexually harass male employees and managers. 

What constitutes sexual harassment?

Sexual harassment is unwanted conduct of a sexual nature that has the purpose or effect of violating the victim’s dignity. In deciding whether the conduct should be regarded as having that effect, the victim’s perception and whether it is reasonable for the conduct to have that effect will be taken into account:

The “reasonableness” test that tribunals apply should mean that a particularly oversensitive complainant who unreasonably takes offence at something innocent would not be considered to have been harassed. 

It is also sexual harassment if the harasser treats the victim less favourably than he or she would otherwise have treated the victim, either because of the victim’s rejection of or submission to the sexual conduct in question. 

The key complaint from victims of sexual harassment following the victim’s rejection of the sexual conduct is that their career progression prospects are adversely impacted. 

Warning signs

Telltale signs of sexual harassment to which management should be alert include where an employee has previously been heavily involved in the company’s social events and recruitment activities and then for no apparent reason withdraws from these activities, in order to avoid any contact with their harasser outside of the office. 

Key points arising from the definition of harassment

  • One off incidents can amount to harassment and the victim need not have made the perpetrator aware that the conduct was unwanted. Silence should not be taken as acceptance of the conduct. In many cases, victims are reluctant to complain because of the seniority of the harasser, the consequences for their job security or the fear that they will not be believed. The EC Code of Practice on Measures to Combat Sexual Harassment states that it is often “a distinguishing characteristic of sexual harassment…that employees subjected to it will often be reluctant to complain.”
  • Management must ensure that complaints of sexual harassment against senior management are treated as seriously and in the same way as a complaint against a junior employee for harassment would be.
  • It is important to ensure that the company’s internet policy is consistent with the relevant provisions of the company’s anti-harassment policy. In the case of Moonsar v Fiveways Express Transport Ltd, during her evening shift as a data entry clerk, the claimant was aware on three occasions of male colleagues downloading pornographic images onto their computers. While the claimant had not been shown the images and had not made any complaint at the time, the Employment Appeal Tribunal found that it was discrimination, as the claimant’s dignity was undermined. 

Typical examples of harassment

  • Elevator eyes – looking male/female colleagues up and down;
  • Unwanted pressure for dates;
  • Referring to colleagues as babe, honey, hunk;
  • Wolf whistling;
  • Turning work discussions to sexual topics;
  • Sexual innuendo;
  • Massage;
  • Spreading rumours about someone’s sex life;
  • Giving personal gifts; 
  • Hanging around a person; 
  • Staring at someone; 
  • Winking, throwing kisses or licking lips; 
  • Blocking a person’s path;
  • Following a person; and
  • Touching a person’s clothing, hair or body. A few years ago a US law firm had to deal with complaints of sexual harassment by a number of female employees against a male manager. One of the complaints was that the manager would touch female colleagues' clothing and comment on their outfits. He admitted touching a female colleague’s skirt but said that it was not sexual touching, because he sometimes touched men’s clothing and he did so to enforce the company’s dress code. This same manager thought it was acceptable behaviour to ask female colleagues to “feel my guns” as an icebreaker. Clearly he was a prime candidate for anti-harassment training and coaching in relation to his management style and how not to abuse his position of power and influence to sexually intimidate female colleagues. 

What is the company’s liability?

Companies are vicariously liable for anything done by an employee “in the course of their employment”, regardless of whether the employee's acts were done with the employer’s knowledge or approval. There is a defence available to a company if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act. 

What constitutes “acts done in the course of employment”?

Harassment of an employee by a colleague in the workplace will almost certainly be covered. The dividing line becomes blurred with conduct outside the office and out of normal working hours, particularly at social gatherings such as team bonding events, client hospitality, marketing initiatives and recruitment drives.

While most employees appreciate that it is a disciplinary offence to turn up to work drunk, many employees have no issue becoming inebriated in front of their work colleagues at social events. Many claims stem from inappropriate behaviour during drunken work nights out. 

Some situations will automatically be considered an extension of employment, for example a colleague’s leaving party, or informal drinks with colleagues immediately after work.

The “reasonable steps” defence 

The employment tribunal will take a two-stage approach, looking first at what steps the company took and then considering whether there were any other reasonable steps that it could have taken. It is not enough merely to have an anti-harassment policy; the company must ensure that the procedures outlined in the policy are followed and applied consistently and that practical steps are taken to implement the policy. Reasonable steps will usually include:

  • Having and implementing an Equal Opportunities Policy and an Anti-Harassment and Bullying Policy and reviewing those policies regularly;
  • Making all employees and managers aware of the policies and their implications;
  • Training managers and all staff in equal opportunities and harassment issues; and
  • Taking steps to deal effectively with complaints, including taking appropriate disciplinary action. 

Managers and employees should be required to re-read the company’s Anti-Harassment Policy on an annual basis and sign to confirm that they have re-read the policy and will abide by it. As and when there are changes to the law, or when significant new harassment cases are decided, updated refresher training should be given to managers and staff. 

Most large employers offer a confidential counselling service to their employees for a wide range of matters and this should be extended specifically to victims of sexual harassment. 

Companies should consider having an anonymous reporting hotline. This will enable an employer to see if numerous complaints are being made against certain individuals or if there are systematic problems with the culture in a particular department. 

Employees should also be informed that complaints of sexual harassment made in good faith will be treated confidentially as far as possible and assurances should be given to them that they will not be victimised for raising such a complaint, ie there will be no adverse impact on career promotion prospects, salary review or bonus. 

Companies should also review their internet and email policies to ensure that they are consistent with their Anti-Harassment Policy. There have been a number of cases in which sexually explicit emails were forwarded globally, resulting in the employee’s dismissal. Such emails potentially constitute sexual harassment, not only of the individual described in the email, but they can also create an intimidating, offensive and hostile environment for female employees who receive the email. 

Third party harassment

Companies should ensure that their anti-harassment policies enable employees to complain about harassment by clients and customers, as well as colleagues, and that employees are reassured that raising such complaints in good faith will not lead to them being victimised and will be treated seriously, regardless of how much the client or customer generates for the company in fees or revenue and whether they are a key client or customer of the company. 

Steps to prevent harassment of employees by clients can include notifying third parties that harassment of employees is unlawful and will not be tolerated. Companies could consider including a term in their Engagement Letters or Terms and Conditions of Business notifying clients and customers of the company’s policy on harassment and requiring them to adhere to it. 

The Engagement Letter could make it clear that if a client fails to adhere to the company’s policy on anti-harassment, the company will end their retainer with the client. 

I have not seen any companies incorporate such a term in their Engagement Letters or Terms and Conditions of Business yet, but following the recent sexual harassment scandals and the momentum of the #MeToo movement, it may become common practice for such terms to be incorporated in the future.  

When pitching for work from new clients, particularly US businesses, such clients often ask about the company's internal diversity, equal opportunities and anti-harassment policies to ensure that they do business with companies whose values regarding their workforce are consistent with their own. Stamping out harassment can not only help your company win instructions from new clients, but it also makes you more appealing to lateral hires and prospective merger targets. 

Anti harassment tactics, strategy and practical steps

Policies should clearly point out that even if the company is not found to be vicariously liable for the acts of an employee, the employee cannot escape personal liability for the harassment. Most claimants are advised to issue proceedings against both the company and the harasser. This tactic is adopted by claimants to cause maximum embarrassment to the harasser, for economic reasons because the former will have deeper pockets than the harasser to compensate the claimant for the harassment; and partially to see whether the company will stand behind the alleged harasser or whether it will divide and split them. Many victims want compensation and their harasser to be dismissed. 

It is usual during an investigation for the alleged harasser and victim to be separated from each other. Companies should avoid having or enforcing blanket policies, whereby as a matter of course, the victim is moved to a different department or floor from the harasser or asked to work from home during the investigation, particularly where the harasser is a manager and the victim is a junior female employee, as this could amount to indirect sex discrimination.

When handling a sexual harassment complaint, particularly one involving a manager, it will often be advisable to instruct external counsel to investigate the matter for a number of reasons, including the potential embarrassment factor for the alleged harasser if his fellow managers are tasked with conducting an investigation into his alleged behaviour. Further, if the manager is senior to others conducting the investigation, such as HR, then the victim is likely to argue that any internal investigation would only rubber stamp the harasser’s defence and would not be truly independent. In such cases, it would be advisable to appoint an external independent HR consultant to conduct the investigation. 

Whether the company stands behind the employee or manager accused of harassment or whether it recommends that he obtains, at his own expense, independent legal advice will need to be considered. 

It is important to ensure the company’s culture is such that everyone at all levels within the company understands that sexual harassment will not be tolerated and that disciplinary action will be taken against anyone found guilty of harassment, up to and including dismissal.

Harassment is a form of sex discrimination for which compensation is unlimited and is based on the individual’s actual and future losses. Serious cases of sexual harassment can lead to the victim suffering from severe psychological problems, which could cause them to be out of work for a significant period of time. Those in professional services firms have high earning capacity so compensatory awards could be large in such cases. There is also a separate category of award known as “injury to feelings” and in cases where the victim suffers severe psychological injury as a result of the sexual harassment, the victim could be awarded as much as £42,900 for this element of their claim. The victim could also bring a personal injury claim or a claim under the Protection from Harassment Act, for which there is criminal as well as civil liability.

Vast numbers of female professionals leave their organisation within the first 10 years of employment. Companies will have invested a lot of time, money and resources in training such professionals and helping them to develop their careers. While numerous reasons have been put forward for this, the main one being starting a family, perhaps companies should dig deeper well before the exit interview process to find out whether sexual harassment could be a factor in the female brain drain. Allocating junior female professionals senior female mentors may help to flush out any issues of harassment early on, so that companies will lose fewer talented female employees due to this problem, which often goes undetected for many years. 

Non-disclosure agreements

Non-disclosure agreements (NDAs) have received much publicity lately, being a central feature of both the Harvey Weinstein and the Sir Philip Green cases. In brief, an NDA (or confidentiality agreement) requires one party to keep certain information confidential, usually in return for a financial settlement.

There is a concern that NDAs are being used to cover up sexual harassment in the workplace. They cannot be used to prevent whistleblowing and should not deter victims from reporting the matter to a regulatory body or the police. During Prime Minister's Questions on 24 October 2018, Theresa May vowed to end the use of unethical NDAs, and pledged to consult on possible reforms to improve their regulation and make it clear when they are unenforceable.

Conclusion

One of the challenges thrown up by the #MeToo movement has been the issue of historic complaints, with many of the allegations dating back decades. An organisation facing historic complaints should investigate them so far as possible, even if the employee who makes the complaint is out of time for bringing an employment tribunal claim. This is because a failure to investigate a complaint or deal properly with a grievance can have consequences for the employer, such as a separate claim for discrimination and/or an uplift in compensation where the employee claims unfair or constructive dismissal. The employee may also be able to bring a claim under the Protection from Harassment Act in relation to historic incidents, as longer time limits for issuing proceedings apply.

Whether or not the time limit for bringing a harassment claim in the employment tribunal (currently three months from the act complained of or the last in a series of acts) should be extended is a hot topic, with the Equality and Human Rights Commission and the Women and Equalities Committee of the House of Commons both recommending recently that it should be extended to six months.

If corporate environments are going to change for the better to encourage a genuine 'speak up' culture, where serious allegations of sexual misconduct and harassment can be raised without fear of retaliation or victimisation, then senior management need to lead by example. Inappropriate banter sets the tone of the company's culture, which is why organisations should strive to nip it in the bud and stamp it out early on before it can spiral from verbal to physical harassment. One English law firm recently introduced a safe word campaign, "that's not cool", to challenge the use of inappropriate and offensive language in the workplace.