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Allegations made against Harvey Weinstein and the subsequent #metoo campaign have highlighted the continued prevalence of the problem of sexual harassment in workforces throughout the world. Whilst not the first person to coin the phrase ‘me too’, actor Alyssa Milano said: “If all the women who have been sexually harassed or assaulted wrote ‘Me too’ as a status, we might give people a sense of the magnitude of the problem.” Within days women – and some men – were posting the hashtag #metoo over social media to open up about the harassment they had faced and who finally felt empowered enough to speak out.

In response to the spotlight on this issue, many employers have been rightly concerned  to review their existing policies and increase training programmes for their staff. In light of this, the Advisory, Conciliation and Arbitration Service (ACAS) has published new guidance for both employers and employees outlining the behaviour which amounts to sexual harassment in the workplace.

Firstly, what is sexual harassment?

According to the Equality Act 2010, sexual harassment occurs where “A” engages in unwanted conduct related to sex and the conduct 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 has the effect each of the following must be taken into account:

• the perception of B;

• the other circumstances surrounding that case; and

• whether it is reasonable for the conduct to have that effect.

In the case above, person “A” may respond by saying that they were just joking and that their conduct was not intended to offend. This, however, is irrelevant; the question is rather how their conduct made the individual feel. Furthermore, the conduct does not have to be targeted at any one individual. For example, overhearing degrading comments about other women may create an “intimidating, hostile, degrading, humiliating or offensive environment”. It is also important to note than both men and women (of any sexual orientation) can be victims as well as perpetrators.

ACAS Examples

It can be difficult to directly pin-point sexual harassment so ACAS have set out a limited number of examples of when sexual harassment can happen including:

• unwanted written or verbal comments of a sexual nature, such as remarks about an employee's appearance;

• questions about their sex life or offensive jokes;

• displaying pornographic or explicit images;

• emails with content of a sexual nature; and

• unwanted physical contact and touching.

Sexual harassment can have a serious impact on an individual’s mental and physical health and often forces those facing harassment to leave their employment. As a result, HR teams need to make it clear, through policies and training, what sort of behaviour constitutes harassment.

Historic allegations

As with all forms of discrimination complaints sexual harassment claims can normally only be brought at an employment tribunal within three months of the date the incident took place, although section 123(3)(a) of the Equality Act 2010 states that conduct extending over a period is to be treated as done at the end of the period which is likely to cover protracted campaigns of harassment brought promptly after the last incident. While employees can raise an internal complaint at work much later than this, a three month window for Tribunal proceedings in relation to a specific act of sexual harassment may seem unduly generous to perpetrators particularly given that it may take victims some time to gather the courage to speak about the experience. This, together with the prospect of having to re-live the harassment via a stressful complaint procedure, may preclude many victims from pursuing a complaint at all. While it is worth noting that any complaints of sexual harassment which include sexual assault or physical threats can be criminal matters and fall under different time scales it is the phenomenon of belatedly revealed stories of abuse where justice has been denied that are encapsulated in the  #metoo campaign and the related social media outpourings.

While videos of Donald Trump admitting to sexually harassing women did little to harm his presidential prospects or poll ratings at the time (although it has recently been reported that Trump may now dispute that his voice was the one recorded) closer to home, there have been several allegations made against senior politicians in Westminster, so do the laws need to be reformed?

It may be that renewed media attention and scrutiny will mean there is an increased impetus to revisit the law around sexual harassment. Against this background there may be increased pressure to relax the rules around time limits for legal claims in order to soften this barrier to justice. Further, the law could be strengthened by making harassment training mandatory for companies whose headcount exceeds a specified number. It has had also been proposed by the Work and Pensions and Business, Energy and Industrial Strategy committees that the Government impose deterrent penalties and fines for companies who repeatedly breach employment law in regards to sexual harassment (for more information please see previous article). On a practical level, addressing “normalised” but abusive practices and behaviours and nudging workplace cultures in healthier directions may be the challenges for businesses in order to help prevent sexual harassment in the workplace, mitigate the risk of legal claims, improve employee engagement and avoid potentially catastrophic reputational risks.

If you have any queries about any of the issues raised above, please do not hesitate to contact a member of the Stronachs Employment Team.

Ross Michie, Trainee Solicitor

Chambers UK 2018

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