Sexual harassment in the workplace has been illegal for years, but it’s taken a number of high profile cases to bring the subject into sharp relief. As Adam Bernstein explains, firms that ignore the law face the ignominy of publicity as well as painfully expensive claims brought by employees and the public
In the time since the initial allegations of sexual harassment were levelled against Harvey Weinstein, Kevin Spacey and even honourable Members of Parliament, a torrent of other allegations have followed. And it appears that bus and coach companies have also found themselves caught up in sexual harassment and similar claims. [wlm_nonmember][…]
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In March 2010, the Belfast Telegraph reported on a case involving a woman in Northern Ireland who had won significant damages after complaining of sexual harassment in the workplace. Coach driver Julie Rutherford, from Magherafelt, brought a case against Chambers Coach Hire after alleged sexual comments and inappropriate physical contact. She said management failed to protect her or handle her grievance correctly. The case was settled for £22,500.
And in July 2017, the Metropolitan Police published detail of a conviction of a bus driver – Mohammed Tamim Uddin – who lured a woman onto his bus before sexually assaulting her. He was sentenced to two years’ imprisonment.
Peter Cheese, CEO of the HR professionals body, CIPD, says of harassment that it typically happens where men in positions of power take advantage of women who are their junior or who see themselves as beholden to the men for their position: “Where the job or role is less secure or hard to obtain, this power differential and risk increases. That sort of culture does not appear overnight and is often fed by historic condoning of casual sexism that then sets a tone that harassment can feed off.”
Jane Mann, Head of Employment at law firm Fox Williams, considers the public outing of allegations an important development: “In the past many women felt unable to complain because of the likely repercussions for their careers; advisers would warn women that complaining about discrimination or harassment in the workplace could be career limiting and there was a real stigma surrounding complainants.” Interestingly, she says that women are now being praised for coming forward and reporting unlawful conduct in the workplace: “They are also making use of victimisation laws where employers take retribution against women who have made complaints of discrimination.”
The key issues that are making the headlines
Lee Ashwood, a Senior Associate in the Human Resources Practice Group at law firm Eversheds Sutherland, notes that the key point coming out of all the recent sexual harassment allegations, denials and admissions is: “just how unaware the men appear to be of what is likely to be found by an Employment Tribunal to be sex harassment in the workplace.” He says that their motivation, intention or perception of their actions is completely immaterial. This is because: “An Employment Tribunal will find that a male employee has subjected a female colleague to ‘sex harassment’ if he did or said something related which was not wanted by that colleague and which it was reasonable for the female colleague to feel that their dignity had been violated or an intimidating, hostile, degrading, humiliating or offensive environment was created as a result.”
It is remarkably easy for men who are not moving with the times to fall foul of the rules, as it captures wolf-whistling, photographs of scantily-clad women in calendars on walls, and what used to be thought of as terms of endearment by men such as ‘darling’ and ‘babe’.
Aron Pope, a partner in the employment department of Fox Williams, agrees: “Employees often mistakenly believe that if they don’t mean to cause offence then ‘banter’ is acceptable. Employees who are harassed in this way can bring claims against both their colleague and their employer for injury to feelings.”
But are sexual misconduct allegations on the rise? Ashwood thinks not, and that given time the recent stories in the media may well make men think twice before speaking or acting; he reckons we will actually see a fall in instances of sexual harassment. “The issue for employers,” he adds, “is, however, that we are undoubtedly seeing a rise in the number of allegations of sexual harassment in the workplace as women begin to feel empowered to talk about it, challenge it and gain confidence that their allegations will be taken seriously.”
It’s for this reason Cheese says that now, more than ever, organisations need to do everything they can to instil the right culture through “managers and HR professionals understanding their responsibilities and taking them seriously”, and “ensuring that all employees are accountable for raising any issues they observe.”
Vicarious liability
Case law has shown that employers should be aware of a legal concept called vicarious liability, where they become liable for negligent acts and omissions caused by staff in their employment. Ashwood says it’s easy for employers to be found liable for one of their employees sexually harassing another in a shop, at a work ‘do’ or even after the party has ended. “The person making the allegations and bringing the claim does not even need to bring their Tribunal claim against the accused; they can simply bring it against their employer.” This is why Pope recommends employers take steps to educate employees about equality and diversity, and demonstrate a zero-tolerance approach to discrimination in the workplace: “If an employer can show that it has taken all reasonable steps to stop discrimination in the workplace, an employee may be solely liable for their misconduct.”
And claims can prove very expensive, as the awards a tribunal can make are unlimited; while the award for injury to feelings might be small, if the individual is highly paid and cannot return to work, the award could be substantial.
But what of historical allegations? If they’re serious enough, there will no doubt be police involvement. In terms of the workplace, an employer’s investigation may well be limited because, as Ashwood explains, “the employer may not be able to contact the accused or, even if they can, they cannot compel them to talk.” The only option in this circumstance is to focus on making the person who has raised the allegations feel supported and cared for.
The rights of the accused
Employers should be careful not to get swept up on the ‘Weinstein wave’ and so assume that all those who are accused are guilty – remember the maxim of ‘innocent until proven guilty’ is a fundamental principle of the UK’s legal system.
But as Ashwood takes pains to point out, the accused is entitled to expect the allegations and any investigation to be kept confidential, at least until the investigation and any disciplinary process has been concluded. He warns: “Should their identity be revealed, employers run the risk that the accused, having discovered their identity is widely-known amongst their colleagues, would have a strong claim to say that their trust and confidence in the employer is irreparably broken and so their subsequent resignation amounted to a constructive dismissal entitling them to compensation.”
Going forward and removing the issue from the workplace
Employment law solicitors are bound to say that policies are vital as it gives a firm basis for engendering a sound working ethos; they give employers and their employees clear guidelines on how to behave and what to do if someone does not behave as they should. But Ashwood thinks that more important than policies “is getting managers to understand what is and is not acceptable behaviour in the workplace and giving them the tools and confidence to challenge unacceptable behaviour when they see it.” A policy, he adds, is only one of those tools, others being training and – of course – senior managers leading by example.
Cheese says firms should offer a ‘safe place’ where employees can be heard in confidence and know that their concerns will be addressed: “There must be a clear process to ensure that any complaints are treated with the seriousness they deserve in proportion to the claim being made, in order to be fair to both the person making the claim and the individual that stands accused.”
To conclude
Given that many surveys indicate that 50% or more of women (and around 10% of men) have experienced harassment in the workplace, we now know that sexual harassment is not confined simply to the corridors of Westminster or the casting couches of Hollywood. The problem isn’t going away – employers need to be alive to the risks they face. And considering that that largest ever penalty against an employer for unlawful discrimination was in the region of £4m, the financial implications are potentially huge.
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