Paul Johnstone, partner at Collingwood Legal, gives an insight into recent cases involving allegations of sexual harassment.
The high profile “#MeToo campaign has been headline news in both mainstream media and social media platforms for several months now.
The scandals involving Harvey Weinstein and the recent criminal prosecution of Bill Cosby in the USA are evidence of a dynamic cultural shift in the starkest possible terms that predatory sexual behaviour must be treated with zero tolerance in all institutions and workplaces. It seems rather bizarre to be making such a self-evident statement in the 21st Century – but the awful truth is that many women still experience unwanted attention from men in the workplace (and elsewhere) which can cause significant distress and which, in some cases, can result in criminal sexual assault.
From a legal perspective it is worth highlighting that there has not been any significant change in the law to bring about this cultural shift. Harassment under Equality Act 2010 occurs where there is:
“Unwanted conduct which has the “purpose or effect” of:
-violating a person’s dignity; or
-creating an intimidating, hostile, degrading, humiliating or offensive environment for the recipient.
It is extremely important to appreciate that the intention or motive of the perpetrator is irrelevant in terms of potential legal liability. The power (if that is the right word to use) to trigger an allegation and a claim for harassment (not only on the grounds of sex but also on the grounds of race, age, disability, transgender status, sexual orientation, religious and philosophical belief), rests with the recipient of the conduct or behaviour.
The key words in the definition are “purpose” and “effect”. It is irrelevant whether the perpetrator did not intend to cause offence (i.e. had no “purpose” or “intention to cause offence). The determinative issue is whether the “effect” of the behaviour caused such offence and distress. That will be a matter of fact in each particular case based on the circumstances and reasonableness of the recipient’s response to the alleged discriminatory conduct.
All employers should make it clear in their workplace policies which deal with equality, dignity and respect and disciplinaries and grievances that any discriminatory conduct (including harassment) will be treated as a very serious issue which could potentially result in a finding of gross misconduct and a summary dismissal that means a dismissal without notice and without any pay in lieu of notice. The law has not changed. Attitudes have changed. Standards of behaviour in terms of professional and respectful attitudes within the workplace must follow suit. It is often said that the law can be a blunt instrument and over-regulation can stifle traditional human interaction within a staff team.
The prohibition on sexual harassment should not mean that humorous and affectionate behaviour would be absolutely prohibited but it is important to appreciate that there are boundaries which must be respected. The choice of each individual to engage in consensual flirtatious behaviour remains intact. However where such behaviour is unwanted by the recipient then that is where all parties must be aware that there is a clear legal line in the sand which should not be crossed.
The extreme criminal sexual assault cases reported in relation to Harvey Weinstein and Bill Cosby are thankfully not reflected in the day to day experience of most workers. But, the consequences of the potential abuse of power within workplace relationships where junior members of staff may be vulnerable to manipulation relating to career development prospects by senior managers is an area of risk that should be properly, carefully and respectfully managed.
In order to defend a claim of sexual harassment from an employee an employer must show that they took all reasonable steps to prevent such unlawful behaviour from occurring (s. 109(4) of Equality Act 2010). If an employer cannot prove that it has taken such reasonable steps then it could be held vicariously liable jointly and severally for the discriminatory acts of its employees. Some practical steps which may assist an employer’s defence in this regard are:
-Drafting and implementing policies which specifically refer to sexual harassment as being a gross misconduct matter (ie a sackable offence);
-Making the workforce aware of those policies and the standards of respectful behaviour required;
-Providing effective training to all workers as to what constitutes acceptable and unacceptable behaviour and how to deal with allegations which may arise;
-Dealing effectively and robustly with any complaints raised;
-Creating an inclusive and open culture which is respectful to all.
The Equalities and Human Rights Commission recently published a report entitled: “Turning the tables: ending sexual harassment at work which may indicate that there is an appetite within government to strengthen the law on sexual harassment. However, according to some reports coming from Westminster, it seems that politicians in all parties would do well to take heed of the existing law and start enforcing it to tackle the culture of harassment and bullying which appears to be endemic in the Houses of Parliament. This is indicative of a key component in harassment cases: it is often those in positions of power and influence who are most likely to harass and bully those who are subordinate to them and that includes those who make our laws.