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Firms reopening historic harassment cases in wake of #MeToo

13 Dec 2018 By Emily Burt

Too many organisations still ignoring ‘endemic’ problem, say experts

The #MeToo movement peaked around 12 months ago, but if organisations thought they could look to the future, they could be in for a shock. New research suggests that a sizeable proportion of employers are revisiting historical cases of sexual harassment, in a trend experts warn shows no sign of slowing.

A survey of more than 800 HR, legal and C-suite professionals by law firm GQ Littler found more than seven in 10 (71 per cent) had taken concrete action in response to the viral campaign to raise awareness of harassment in the workplace. But a breakdown of the responses suggests 13 per cent had taken the decision to revisit older instances of harassment and re-evaluate their approaches to them. 

“It’s not happening in huge numbers, but particularly in regulated industries such as law and the financial services sector, there is some nervousness around how these things were handled in the past,” says Beth Hale, technical director at CM Murray LLP. 

One prominent case this year saw international law firm Baker McKenzie dismiss one of its partners after allegations of a sexual assault on a female colleague resurfaced years later. The victim had agreed to leave her role after receiving a payout, and signed a non-disclosure agreement, but the firm retrospectively admitted it should have handled the situation differently and launched an independent review.

“There are organisations that may have shied away from these cases in the past, and tried to avoid confrontation by dealing with complaints quickly and in a way that involves getting someone out of the building,” Hale says. She predicts organisations will be increasingly focused on carrying out a proper investigation when any allegations are made. 

Samantha Mangwana, partner at CM Murray, describes a case in which a female employee had revisited a prior instance of harassment from a male colleague. “At the time, the alleged harasser was investigated and clearly found to have been guilty of misconduct, but he wrote her a letter that said he unreservedly apologised and no further action was taken,” she says. 

“In the years since, she suffered from PTSD, which disrupted her career, while his career took off. This is an example of a situation where #MeToo can trigger distress about people’s experiences that they tried to move past a long time ago, but are reminded of what happened and revisit those complaints.” 

Reopening cases in court will remain challenging under UK law, which states a harassment claim must be brought within three months of an incident occurring. Bringing an older claim would require convincing a tribunal this was a necessary step, and Paul McFarlane, partner at law firm Weightmans, warns such action could be ‘problematic’. “The Court of Appeal has made it clear such cases would need to occur in exceptional circumstances, and it would have to be proved a mistake was made when the case was first brought,” he says. 

The broader response to #MeToo has been to focus on more robust processes. A quarter (25 per cent) of businesses surveyed by GQ Littler have overhauled their internal investigation processes and brought in new tools for collecting evidence. More controversially, around one in five have banned some work-related outings (18 per cent), or adapted workspaces so there are fewer isolated areas (23 per cent). 

But there are still 29 per cent who say they have yet to take any concrete action at all. And the imperative to act was demonstrated just last month, when staff at retailer Ted Baker brought a petition to end what they claimed was a culture of ‘forced hugging’. There was, they felt, “no official way to address the issue of harassment”, and claimed their HR department had “done nothing with reports of harassment to date”.  

“Some people still struggle to believe these unpleasant things could be happening in their backyard, but the conclusion you have to draw from the breadth of allegations is that it is an endemic problem,” says Raoul Parekh, partner at GQ Littler. 

“No one would say ‘sexual harassment is happening in my workplace but I don’t think it’s appropriate to do anything’. But it’s also becoming increasingly difficult to argue you sincerely believe there have never been issues of harassment in your workplace. There are organisations that still need to address this.” 

Stephen Frost, author and CEO of Frost Included, told People Management he had done a lot of work on the “harassment issue” over the past year, but warned not all forms of action would necessarily translate into longer-term cultural change without the commitment of leaders, with many of the steps outlined in the survey indicating compliance behaviours. 

“People evidently want to take action, but are doing so in a compliance-reactive way, as opposed to driving behavioural change,” he says. “A compliance response occurs when a company takes on inclusion and diversity issues because they have to. Then there’s a ‘marketing’ response where companies address these issues proactively because it makes them look good.

“The third and best approach is where companies involve decision-making and leadership in the process, not just tackling inclusion as an aside but as a core part of how the business functions.” 

A survey of UK employees by Acas and YouGov published in November found fewer than six in 10 (58 per cent) respondents felt their employer was currently doing enough to tackle sexual harassment, while the use of NDAs in settled harassment cases remains widespread. An ongoing review from parliament’s Women and Equalities Committee is currently exploring the existing safeguards to prevent misuse on the part of employers, and asking whether there are any instances in which NDAs should be banned. 

“If you want to truly fix the problem, there are a few compliance areas that can be useful, but you have got to address behavioural change,” Frost says. 

“This means developing a clear strategy on a more diverse and inclusive culture; gathering data and acting on it (it’s not really a win if you have a third of women at the top of an organisation, but the behaviours of the dominant group haven’t changed); and making leadership see this isn’t a ‘women’ or a ‘minorities’ issue. It’s about them and their actions.”

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