Without a doubt the recent allegations against both Fox News/their employees, and Mr Weinstein, represent a complete watershed in this area of law.
Victims of sexual harassment have become quickly emboldened, supported by campaigns in both social media and the press (see the FTs campaign within the City and finance sector), and are speaking up.
Accusations are coming through quickly and affect every profession, industry, sector, class, gender and community, even Parliament.
The Legal definition
The Equality Act 2010 defines sexual harassment (which is considered to be a form of discrimination) as ‘all unwarranted conduct of a sexual nature or related to sex, which has the purpose or the effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment‘.
It is a very wide statutory definition, it covers demands for sexual favours (for promotion or increased salary) touching, sexual assault or bawdy jokes/banter. It applies to a ‘one off’ incident as well as to a course of conduct. It does not have to be aimed at one specific individual, but can cover somebody who overhears the conversation or sees the text/email/physical contact.
Some professions, and the Law is amongst them, favour the ‘lads only‘ approach to client entertainment, or suggest to an employee that they dress ‘particularly attractively‘ or 'flirt', to secure an important client. Certainly, this type of behaviour is rife within the commerce, finance and entertainment business and falls squarely within the definition of sexual harassment.
We are regularly consulted by employers, their HR teams, victims of sexual harassment and those facing such allegations, seeking legal advice.
Let’s take each group separately:
The Employer/HR personnel
Please understand that Employment Tribunals regard these allegations very seriously and can award large sums as compensation.
Not only may the company end up in an employment tribunal, but perhaps Court.
All employers have an implied duty under the contract of employment to provide a safe, appropriate working environment and to ‘provide redress of grievance‘, failure to do this could result in litigation citing breach of contract, with large damages at stake.
Accept that company cultural change starts at board level, and that change has to be assertively enforced.
Remember also, that the reputation of the company is at stake, so act quickly when the complaint is received.
So, no silly jokes from Management/staff, about how they cannot get away with saying that sort of thing nowadays - the public reaction to thoughtless comments made by certain politicians and entertainers should make it clear that such thinking is now socially unacceptable.
Get your bullying and harassment policies and procedures up to date and have a separate written policy on sexual harassment.
Ensure that every employee and Manager has regular training in this field (it’s a particularly fast moving area of law, and not one to underestimate).
Personnel who are either making the allegations or who are the subject of them, need to know who to turn to, that both sides will receive a fair hearing and the investigation of the allegations will be thorough and fair.
Document every meeting and conversation (remember they may end up being scrutinised in a legal tribunal of one type or another).
The investigations themselves can be quite complex and delicate- the harassment can often be conducted quite subtlety and discreetly. It can also just boil down to one person’s word against another’s.
Both sides have to feel that they are being handled sensitively and impartially, and they have the right to see the allegations, evidence and to respond.
Analyse the allegation and evidence carefully- were they made during working hours on working premises? In the course of the employees duties? Were the emails/texts/tweets made on the firm’s equipment? Are there Data Protection Act consequences to be considered? Does the allegation involve a third party/supplier /sub- contractor (again this area is very fast moving) as Barclays discovered earlier this year, to their cost (they were held liable in the High Court, for the actions of a GP instructed by them, as a third party, to assess the potential employees).
Be very wary of Non Disclosure Agreements - lawyers love them, the public and press do not.
In any event and despite the possibility of draconian consequences if the NDA is breached, as we have recently seen, some victims/complainants have breached them, confident that a company or employer would seriously assess the consequences and the possible, further reputational damage of suing for such a breach.
Employers can no longer just decide to separate the personnel involved, for example move them to a different office, and hope that will suffice. A sensitive, fair, balanced and pro active approach is now required from employers and their HR teams. If in any doubt, contact an experienced lawyer.
Research undertaken by both the BBC and trade union organisations recently, shows that sexual harassment is pandemic, and that the vast majority of those who have been subject to such harassment, do not complain about it. Most just grit their teeth, smile or even join in, terrified for their jobs and promotion.
The tribunals and courts understand this reaction, particularly when it involves (young) women and men or where English is not the first language.
Firstly, tell somebody - a friend/another colleague/Manager/your union/professional association/Citizens Advice Bureau.
Write all that happened down - preferably as soon as possible after the incident.
Collate as much evidence as you possibly can; every note/email/text/tweet/record of telephone calls/telephone messages. Keep this evidence as safely as you can and in clear, strict chronological order.
See if there are any witnesses to the events/comments- note who was around when the incident happened.
Think about building a strong case to submit with your complaint to your employers. Do not be afraid to speak up to your employer, you may find that you are not the only employee to make such an allegation against a certain employee(s) and co-workers.
Remember, that ordinarily you will have to originate proceedings with the employment tribunal within three months of the allegation. Not every employee is going to be able to afford a lawyer, however some lawyers will assist on a fixed fee basis.
The Accused co-worker/employer/employee
We have been consulted by a number of individuals/companies from the professions, commerce and entertainment worlds, in particular about the possible legal consequences of sexual harassment allegations in the wake of the afore mentioned American scandals.
These include concerns about the possibility of criminal proceedings, reputational management, professional disciplinary proceedings, civil actions and financial penalties.
Additionally, a number have found themselves falsely accused of sexual harassment and are simply terrified of the consequences upon their careers, finances and relationships.
We advise and represent these people and assist them to defend themselves.
How we, at Lewis Nedas Law, can help you
Unusually amongst law firms in England and Wales, we have not only expert specialist employment and discrimination lawyers, but can also call upon our team of highly regarded expert criminal lawyers who can advise not only upon potential criminal proceedings, but also reputational management.
Years of successfully defending sexual allegations, gives us unique insight into the assessment of the evidential value of these allegations of sexual harassment.
We know how to prepare cases and to defend these types of allegations. We can advise upon employment policies and compliance in this field.
We understand the consequences for employees, employers and professionals, in particular those from HR, commerce, the City, finance, sporting and entertainment worlds, having advised and represented these types of individuals and companies for decades.
We do so efficiently and discreetly, instructing the best specialist barristers and experts at reasonable realistic fee levels.