UK: #MeToo (November 30, 2017)

Since the publication of the damning New York Times article in which allegations of sexual harassment were made against film mogul Harvey Weinstein, more than 30,000 women have joined the "#MeToo" campaign. Originally started by the actress Alyssa Milano, the campaign was joined by thousands of women from around the world, including Anna Paquin, Debra Messing, Gabrielle Union, Lady Gaga and others. Once the hashtag appeared on Twitter, it was used 850,000 times within the first 48 hours. The aim of the campaign – to raise awareness about sexual harassment both in and out of the workplace and to address power imbalances – has undoubtedly been achieved as, using the hashtag, women around the world are sharing inspiring but saddening stories on a daily basis. The campaign sends an empowering message to women who may be victims of sexual harassment at work by showing that they are not alone and have nothing to be ashamed of. It has also proved an eye-opener for the world in relation to the scale of a problem and the changes in behaviours that are still required. The campaign is also about more than simply empowering women. Men who have suffered sexual harassment are encouraged to come forward too.

Google Trends analysis shows that searches for the term "sexual harassment" multiplied almost threefold from 1 to 15 October 2017. Sexual harassment is not, however, a new issue. It is also not only relevant to those in high-profile jobs or in the entertainment sector.

The Trades Union Congress' report on sexual harassment in 2016 provided alarming statistics:

  • 52% of the female respondents had been sexually harassed at work.
  • 35% of the female respondents had heard inappropriate comments or jokes of a sexual nature about other women.
  • 32% of the female respondents had been subject to unwelcome jokes of a sexual nature.
  • 28% of the female respondents had been subject to comments of a sexual nature about their body or clothes at work.
  • 20% of the female respondents had suffered unwanted sexual advances at work.
  • 12% of the female respondents had experienced unwanted sexual touching or attempts to kiss them at work.

So with awareness growing, what should employers do when faced with claims or allegations of sexual harassment?

The law

Harassment is a form of discrimination. Protection from harassment extends not only to employees but, for example, to job applicants, workers, LLP members and agency workers. The duty not to discriminate also continues following the termination of employment in relation to, for instance, references. Individuals as well as the employer may be liable for acts of harassment.

A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:

  • violating B's dignity; or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In deciding whether conduct shall be regarded as having the effect referred to above, the following must be taken into account:

  • the perception of B;
  • the other circumstances of the case; and
  • whether it is reasonable for the conduct to have that effect.

There are nine protected characteristics under the Equality Act 2010, one of which is sex or sexual orientation.

There is also a specific protection in relation to sexual harassment: A harasses B if A engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to above. This is usually referred to as "sexual harassment".

A also harasses B if:

  • A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex;
  • the conduct has the purpose or effect referred to above; and
  • because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

Practical tips

  • It is essential to undertake a full, fair and discrete investigation of any allegations, recognising the serious impact that such allegations might have on both parties. Some situations can be dealt with by the way of an apology whilst, at the opposite end of the spectrum, certain allegations, once investigated, may need to be progressed to the relevant authorities.
  • Employees may feel concerned about raising allegations of sexual harassment. They may not want to "rock the boat" and may even fear that raising such allegations could result in them losing their job. It is important to have a clear equal opportunities policy and an expressed zero-tolerance approach to discrimination of any form so that employees feel supported in raising any concerns.
  • Larger employers may also consider providing a helpline, perhaps using an external provider, so that employees can seek advice anonymously in the first instance.
  • Diversity training should be given to all employees to engender a culture of equality and respect. 

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

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