There is no doubt that the #MeToo movement, brought about by revelations of Hollywood producer Harvey Weinstein’s sexual harassment crimes, sparked increased awareness around sexual harassment. Following this, we have seen a notable rise in sexual harassment allegations generally, and claims at employment tribunal.
The first step in tackling this issue is to understand what sexual harassment in the workplace is. The Equality Act 2010 defines sexual harassment as unwanted conduct which: violates someone's dignity; or creates an intimidating, hostile, degrading, humiliating or offensive environment for a person.
What is most interesting is the fact that there is no need, in either case, for the perpetrator to intend to sexually harass. It is enough that it has that effect and there are many cases that demonstrate this.
Those who have experience of such claims will know of the reasonable steps defence for an employer – that steps were taken to prevent or mitigate harassment in the workplace. Key components of this defence include staff training and robust policies that are explained clearly. However, it is important that organisations do more than take this risk as a box-ticking exercise. Preventing sexual harassment should be embraced wholeheartedly, to ensure staff feel genuinely safe and happy at work. Studies have shown that zero tolerance of all discrimination and harassment improves company performance, staff retention, morale and productivity.
The duty to prevent harassment extends to contractors onsite and even job applicants. The 2016 TUC/Everyday Sexism research found that 52 per cent of British women had experienced sexual harassment in the workplace, but that only one in five had reported it.
Nowadays, in the wake of the #MeToo movement, more women are refusing to put up with being made uncomfortable by, for example, unwanted flirtation, suggestive comments and lewd jokes. This means that more women are willing to issue formal complaints.
Fairness at work requires reasonableness not only for the complainant, but also for the accused, and any witnesses. We must not forget that men are equally protected against sexual harassment; a tribunal recently ruled that calling a man ‘bald’ in a derogatory fashion was gender-based harassment.
Prevention is always better than cure. Nowadays, more organisations are trying new ways to avoid problems in the first place. For example, PwC is organising ‘sober representatives’ to keep an eye on behaviour at events such as Christmas parties, where alcohol is consumed aplenty. Such nights out are a notorious source of sexual harassment allegations.
In the social media age, the reputational damage from a claim of sexual harassment can be very severe. In the past, employers have sought to save face with early settlement agreements, which included non-disclosure agreements (NDA) preventing the victim from making the facts known publicly. However, such NDAs may not be enforceable. We have also seen ‘non-waivers of sexual harassment’ clauses that have started creeping into settlement agreements. Whether they are generally enforceable remains to be seen.
There is, increasingly, nowhere to hide for organisations that fail to protect their employees from sexual harassment in the workplace. It’s high time for employers to review their policies and procedures, and to implement training to ensure staff are fully aware of the risks and what is and is not acceptable behaviour in the workplace.
Hina Belitz is a partner and specialist employment lawyer at Excello Law