Since #MeToo, is it too difficult to bring a sexual harassment claim in the workplace?

Thanks to campaigns such as #MeToo and the exposure of Harvey Weinstein, sexual harassment in the workplace is now a very hot and live topic. As a result, a spate of claims against employers is inevitable as more victims have the courage to come forward. But how difficult is it to bring a claim?

Nearly two-thirds of women under 30 in the UK claim to have been sexually harassed at work. This shocking statistic comes from a recent survey carried out by the Prospect Union, which represents skilled workers in a number of sectors.

The survey reports that 35% of women suffered sexual harassment of some kind, with 17% experiencing unwelcome behavior of a sexual nature. Fourteen percent revealed that they had been subjected to inappropriate touching, hugging or kissing.

This begs the question: how easy would it be for any of these women to bring a claim for sexual harassment against their employer?

What is sexual harassment?

For the purposes of making a claim against an employer, sexual harassment is defined as “unwanted conduct of a sexual nature, that has either the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”.

The words “or effect” are important. They mean it is not necessary for the harasser to have had a negative purpose, the relevant point is the effect on the person being harassed (so long as their reaction is not unreasonable). In one case, the owner of a business was found to have committed harassment by trying to play cupid between a pair of male and female employees and suggesting they start dating. This was found to be harassment despite his apparently benign motive.

It is worth saying at this point that although complaints by women outnumber those by men, the rule applies equally to both sexes and in relation to harassment by either sex.

Sexual harassment is not limited to physical contact or sexual advances. It extends to comments, innuendo and the sharing of sexual images (such as in an email or by putting an explicit calendar on the wall). Nor does it need to take place on the employer’s premises. Trying to kiss a colleague at the Christmas party or on a team building day could still count as sexual harassment in the workplace.

There can also be harassment because of an individual’s rejection of conduct of a sexual nature. It is not uncommon for a perpetrator to abuse their position in relation to a subordinate. These different levels of seniority can make it harder for the complainant to reject advances immediately and show clearly that this conduct is unwanted.

As in most areas of the law, there is no clear demarcation as to what conduct constitutes harassment. There needs to be a forensic examination of the conduct itself, the context and background of the conduct, the response by the victim and their feelings, and whether the reaction and the complaint is a reasonable one to make. Also, whether it is in fact non-consensual.

This is further complicated if the parties were previously in a consensual physical relationship, which has since broken down. In many of these types of cases, the devil is in the detail and the most salacious allegations are not necessarily the ones that will pass the relevant legal tests. That is why it is so important to obtain good legal advice at the earliest opportunity, so that you can react appropriately and proportionately to any unacceptable conduct.

What can you do if you have been sexually harassed?

First, immediately seek independent specialist legal advice.

Making an allegation of sexual harassment is very serious and you must be confident about your legal position if you are to pursue a claim. Being properly informed about the implications of the actions you are taking and the options available to you is vital.

A good lawyer will advise you about the various legal hurdles you will need to overcome. They will identify those aspects of your allegations that are the strong, those you should not raise and how and in what form to submit a complaint. They will also set out what you can expect from submitting a complaint and have a contingency plan should your employers not co-operate.

The legal process

If you are sexually harassed at work, you would normally raise a grievance against your employer. If that does not result in your desired outcome you can bring a claim against your employer in the Employment Tribunal.

Time limits to submit a claim are short, so you must be pro-active. There is no limit to the amount of money you can claim for sexual harassment. Any award will be based on lost earnings for the time you are out work (if you leave your employer or are dismissed), injury to your feelings and, in some instances, a personal injury claim where the conduct has resulted in mental health issues or physical harm.

There are various additional claims you can make. These are dependent on the context and background to the complaint and your employer’s reaction to the allegations that you raise. These range from discrimination, victimisation, breach of contract, unfair dismissal and, if you have resigned, constructive dismissal.

Unfortunately, most allegations go unreported and few reach the tribunals. This is often because of a lack of evidence. As one would expect, in many cases there are no third-party witnesses and it is a case of one person’s word against another. That is why it is important for victims to report incidents as soon as possible and provide as many details as they can. Even the seemingly smallest details will be important if the case comes before the Tribunal.

There are lots of myths about sexual harassment. Banter is not a defence. Nor is it a defence if the victim doesn’t complain or seems to play along. In one case a restaurant manager was found to have harassed four waitresses even though they had put up with him over a period of time and even initiated sexual talk as a way of coping with his behavior. By contrast, one incident is sufficient to constitute harassment.

Many of the reports of sexual harassment in the press relate to incidents alleged to have taken place some years ago. In most cases, an employee will not be able to bring a claim against their employer in relation to an incident that took place more than three months ago.

What defences can employers rely on?

Employers can rely on a variety of defences to resist a claim, including showing that:

• They have clear and up-to-date policies and procedures dealing with sexual harassment. It is important that these are regularly communicated to the staff and it also helps if they can show that there is a company culture in place that abhors this type of behaviour
• Staff have received regular training from a reputable organisation
• Complaints are taken seriously, dealt with confidentially and consistently, and action is taken swiftly and proportionately
• The alleged behaviour was unrelated to the individual’s employment

Notwithstanding these defences, ultimately, where a claim has merit, the employer will be vicariously liable.

In the current climate, people are less reluctant to accept a culture of inappropriate behaviour. What may previously have been tolerated (and in some industries accepted as an occupational hazard) is no longer acceptable. Perpetrators now find themselves the subject of complaints where previously they would not have been brought to task.

Due to the many high-profile cases widely reported in the media and the drive towards gender equality, companies no longer wish to be associated with such conduct or seen to condone it.

As a result, it is easier now to bring a complaint. Some companies have become so concerned about their reputations that they will instruct solicitors to advise on internal grievances and even QCs to investigate and make a final determination on a complaint. In effect, they will judge the facts on a quasi-judicial basis with the objective of pro-actively heading off any prospective claim. We are yet to see the full implications of these methods, but they will hopefully lead to a reduction in litigation.

The law relating to sexual harassment has been in place for some time but only now are changing times and attitudes allowing more people to take advantage of it. This is long overdue, but better late than never.

For more information on this subject or if you would like to discuss harassment you have suffered in the workplace in the strictest confidence, please get in touch.

Thalis Vlachos

DD: +44 (0) 7971 000 048

Email: thalis.vlachos@gunnercooke.com