Further allegations have emerged about sexual harassment cases in Hollywood. Each of the alleged perpetrators (Harvey Weinstein, Kevin Spacey, Brett Ratner and Jeremy Piven to name a few), have exploited their status and position of power to sexually harass those around them.
Incredibly, Harvey Weinstein was able to remain completely unaccountable for over 30 years – how is this possible? Why did those affected not speak up sooner?
As employment lawyers in London, we sadly do see the worse of these incidents both inside and out of the workplace and fear, is usually what breeds silence; fear of losing your job, not being believed and even facing reprisals.
A person can also face humiliation, embarrassment and shame when these incidents happen, which is entirely natural but unacceptable. Victims of harassment are often in need of support and help to report these matters, but they are often isolated, scared or unsure of their rights.
In 2016 the Trade Union Congress, in association with Everyday Sexism, released a scathing report stating that on average 52 per cent of women in the UK experienced some form of sexual harassment in the workplace. With younger women aged 18-24 experiencing this at a much higher rate. The most concerning fact of the report was how few women reported acts of sexual harassment, and from this minority, only 10 per cent felt that their situation improved. Shockingly still, 16% actually stated that their circumstances worsened with the majority observing no change at all.
So, what is sexual harassment? The Equality Act of 2010 defines it as “unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.” This conduct can include jokes, and yes, even ‘banter’ to physical contact and everything in-between. It can be given by phone, in person, Email or even out of a car window. However, you don’t have to actually be the direct victim of the ‘act’, but if you are also scared or disturbed by the action and likewise feel harassed even from across the room you too can and should report this as sexual harassment.
We had a lady face horrendous abuse from her boss who exposed himself regularly at her desk, took drugs from off his desk in front of her and actively sexually harassed her physically. Whilst doing this he actually videoed himself and posted this online, which was incredible. As lawyers, this was a gold ticket to conclude the settlement on her behalf but the arrogance to do this was mystifying. Surprisingly he still retains his job!
Often people don’t understand that these incidents are also criminal acts and should be reported to the police, but people are often too afraid of the repercussions or unsure of their rights. Someone exposing themselves or assaulting you is a criminal act, harassing you aggressively with unwanted sexual comments that places you in fear is a criminal act and following you home from work, is a criminal act!
Sadly, a large majority of these incidents actually occur in the workplace so intimidation is often used to quieten the victim; as such it’s often a place where sexual harassment is often ignored or dismissed. The problem faced by many employees is the desire to be free of sexual harassment vs the desire to pursue a successful career and not ‘rock the boat’. The vast majority of people polled, in the above report, had experienced sexual harassment from a colleague, with nearly one in five stating that it was someone with direct authority over them. So how do you overcome such an impossible situation? How do you work with them when there is a grievance in place and yet you have to see them every day? Will other staff members take it seriously or think you are creating trouble? Will it hinder your career?
These are all things that we know go through people’s minds during this time causing often depression and self-confidence issues.
What should you do?
Well, firstly, keep a diary and record everything…including times, dates and comments made. Evidence is key in establishing any case, and even though many acts of sexual harassment occur without an audience or witnesses, recording this information could lead to evidencing the bigger picture; Retain photos/medical evidence if you are depressed or if you have suffered physical contact; save emails, make notes of conversations and write down the names of individuals who may have overheard or seen the action.
You may not be the only person that has been targeted and therefore the evidence you supply could be supported by other colleagues. Try not to be alone with your harasser, remain in sight of other people, tell the individual to stop. As difficult as it may be, directly telling the individual that you do not tolerate this behavior makes it clear that the action is no longer ‘banter’ or a joke. Doing this publicly further supports your position. Remember, if the facts remain unclear after a thorough investigation the decision will rest on what a reasonable person would conclude in light of the evidence.
If you don’t feel like you can tell your superior, then tell someone you trust in the office or if your office has a HR department, start there. This may also be difficult, especially if the person is in a senior position in the business. Doing this verbally may informally resolve the situation. However, if this is not the case you must put your complaint in writing and issue this as a formal grievance, this way your employer is forced to investigate and respond to you. Any good and reputable employer should do this confidentially and take it seriously, so the issues can be addressed. Unfortunately, this is not always the case so you may need to appeal, seek legal advice and persevere for a response. Any meetings relating to the issue should be minuted, but it is useful to take notes yourself as well. Taking colleague or union representative to any grievance meetings will provide support and will help you to not feel bullied or pressured in any way. It is also important to take your time and take in written notes to read out if this helps you cover all the aspects.
If you don’t feel like your place of work is doing enough or you have spoken to your superiors with no results, there are other options available. You can report this to ACAS, who will talk to your employer on your behalf; make a claim to the Employment Tribunal who will hear your case and act upon it (however, we usually strongly suggest a formal grievance and lawyers letter before this). If someone has caused you such trepidation that you feel sick or scared, you can seek a medical certificate to sign off work during the grievance. Additionally, you could dismiss yourself if no real or genuine action/protection is being taken, then you can claim ‘unfair dismissal’.
Being afraid of losing your career/job is entirely normal and you may feel reluctant to act because of this. However, the vast majority of cases do not reach a courtroom and are settled anonymously, allowing you to stay out of the spotlight of future employers. You should not be placed in an environment that is dangerous, scary and/or upsetting. If your employer does not take action then a lawyer’s role is to help you seek compensation so you can move on and find a new job or new department, unless we have been able to remove the person causing the harm or address the issues for you.
We had a man follow a male colleague home, from work, calling him names because he would not go out with him. He genuinely scared him that he would attack him in his home and his employer said it was none of their business. Once the police were involved and issued a caution you would think the employer would sit up and take heed, but no still not their business. We became involved and found this was not the first time this had happened and as we issued the claim and managed to obtain a huge settlement on behalf of the client that’s only when they took some notice. However, the damage was done and our client suffered terrible self-confidence issues and was diagnosed with depression during the proceedings.
Whilst we talk about the ‘work place’ an employer is vicariously liable for the actions of their employees, meaning they can be held responsible for any harassment from one member of staff to another. Even if it’s at a social occasion or in the staff car park or otherwise. Failing to address any concerns of your employees could lead to serious repercussions regardless of where this happened.
Although most reported cases involve men harassing women it is not exclusive and the reverse is also possible, as well as same-sex harassment. The TUC report specified that in 1 out of 10 cases, the perpetrator was a woman which demonstrates that sexual harassment can happen to anyone at any time. Men / same-sex employees will still feel the same intimidation and concerns and must be equally protected and respected if they raise the issues. If you see someone being sexually harassed, make it your responsibility to intervene/report. The simple act of supporting the targeted individual may, in turn, help others in the same situation.
No one should be forced to work in an environment where they feel threatened, so why should you? Take action now.
Karen Holden is a multi-award-winning solicitor and founder of A City Law Firm.
