Navigating sexual harassment claims in the MeToo era

It is an unfortunate reality that workplace Christmas parties are often followed by a stark rise in sexual harassment issues and claims. Aware of this, many organisations now implement safeguards around such events, such as PwC who are even organising ‘sober representatives’ to keep an eye on tipsy staff.

Sexual harassment claims are a growing risk for employers, and the increased awareness following the MeToo movement – propelled by revelations about the crimes of Hollywood producer Harvey Weinstein – has caused a notable increase.

Equality Act 2010

The Equality Act 2010 defines sexual harassment as unwanted behaviour which either:

  • violates someone’s dignity, whether intentionally or otherwise; or
  • creates an intimidating, hostile, degrading, humiliating or offensive environment for a person, whether this was intended or not.

The subjective nature of the legal definition means, although a harasser may intend to harass, the effect of the behaviour on the recipient is a key factor in determining whether harassment has occurred.

Training and robust policies set out by employers are crucial to mitigating the risks surrounding sexual harassment – and preventing sexual harassment should be embraced positively, as part of creating a safe and happy workplace, helping to improve staff retention and morale.

The who…

Organisations’ duties and liability apply not only to employees, but also to contractors and job applicants. It is essential to ensure all are made aware of the relevant policies and standards of behaviour required. The government’s 2021 sexual harassment consultation also recommends introducing a duty for employers to prevent sexual harassment by third parties.

A recent study published by TUC and Everyday Sexism, found over 50 per cent of women had experienced sexual harassment at work, while only 20 per cent had reported it. Following the MeToo movement, women are more inclined to issue formal complaints in response to unsolicited touching, unwanted flirtation and suggestive comments.

Employment Tribunal risks

It is unwise for employers to try to sweep complaints under the rug. If a complaint progresses to an Employment Tribunal claim, any failure to properly follow fair procedures can be devastating to a defendant’s case. Treating those that raise a complaint fairly in this situation includes following company policies and procedures. HR teams should also be aware of the importance of treating harassment complaints consistently as far as possible.

Solicitors should also be aware that the SRA regards sexual harassment as serious professional misconduct. SRA guidance notes that solicitors “must not abuse their professional position to initiate or pursue an improper sexual or emotional relationship or encounter with a client, a colleague or anyone else.” The guidance sets out detailed considerations as to what it regards as improper conduct and why it regards some individuals, such as junior staff, as more vulnerable – also stating “we expect firms to foster a culture of zero tolerance of sexual misconduct, where staff feel that they can speak up freely.”

In the age of social media, a sexual harassment claim can cause extreme damage to both an individual’s and employer’s reputation. In the past, employers have often sought to save face through settlement agreements, with a non-disclosure agreement (NDA) included. However, few such NDAs are likely to be enforceable. Similarly, the ‘non-waiver of sexual harassment’ clauses creeping into settlement agreements may also be open to challenge.

As claims ratchet up, organisations should review their policies, and ensure that staff are both educated about, and protected from, sexual harassment in the workplace.

Published in Solicitors’ Journal – Dec 22