In the 21st century, after all the awareness and protective legislation, you’d think that the western world would have seen an end to sexual harassment at work. This Valentine’s Day it feels as if we are moving backwards.
It’s hard not to wonder what behaviour is considered socially acceptable, when we see a cross-party committee in Parliament report that sexual harassment has been “a feature in the lives” of many who work there. The committee’s survey heard from more than 250 people who experienced sexual harassment in the past year.
In the last six months we saw the allegations against US movie producer Harvey Weinstein and the rise of the #MeToo movement as part of the response. We’ve also had the scandal around the Presidents’ Club event.
According to research by the Trades Union Congress (TUC) in August 2016, two-thirds of young women face sexual harassment – ranging from jokes to unwanted sexual touching or advances – at their place of work. In this investigation, 63% of young women between the ages of 18 and 24 said they had experienced sexual harassment, with 52% of women of all ages confirming the same.
A BBC survey conducted after the Weinstein allegations concluded that more than half of British women and a fifth of men have been sexually harassed at work or a place of study. Worryingly, 63% said they didn’t report it to anyone and 79% of the male victims kept it to themselves.
So why aren’t more cases being brought at Employment Tribunal by victims seeking compensation for unlawful sexual harassment under the Equality Act 2010?
The latest statistics from the Tribunal show only 8,836 cases for sex discrimination being brought in 2016/2017, which would include sex harassment cases. While this is a significant increase on the previous year, it is well below the levels we saw before fees were introduced.
Is it that such behaviour is getting normalised by what we read and see in the press? Perhaps the victims worry that how they feel won’t be taken seriously or that a Tribunal might think what has happened to them is too ‘minor’.
The Equality Act is clear that sexual harassment occurs when a person engages in unwanted conduct of a sexual nature. This can cover verbal, non verbal or physical conduct including unwanted sexual advances, touches, sexual assault, sexual jokes, displaying pornographic photos or drawings or sending emails with material of a sexual nature. Unwanted means unwelcome or uninvited – an express objection need not be made.
How the victim feels is important, not whether the perpetrator meant to upset the victim. If the perpetrator can show they did not intend to violate the victim’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for the victim, the only check applied is one of reasonableness: a Judge will ask “was it reasonable that the conduct experienced by the victim had this impact?” In most cases, the answer is a resounding ‘yes’ and this overrides the perpetrator’s intent.
Could the lack of claims be because victims are worried about losing their jobs?
The TUC study found that those on zero-hours contracts, doing precarious work or agency or hospitality work, were far more likely to be the object of sexual harassment in the workplace than those in steadier work. Clearly in those jobs, the fear would be that if they stood up to the behaviour they would not get offered any more shifts. If money is tight this could have immediate negative consequences.
The alleged behaviour in Parliament and in the Weinstein cases suggest this is also about a power imbalance where people are ambitious to progress in their career, and the tendency of some others to use that power over them corruptly.
Victims may not realise that there is legal protection for them if this happens. If a victim is treated less favourably because they submitted to or rejected unwanted conduct, they can claim further compensation including sums to cover any loss of earnings. This is in addition to claiming up to £42,000 as compensation for injury to feelings.
Perhaps it is because victims fear the Tribunal process and that it will cost them money?
Like any legal action, there is always a degree of pressure but the Tribunal system is a much more relaxed setting than a criminal court and it is only usually at the main hearing that the victim and perpetrator would be in the same room. Although tribunal fees have been abolished, a victim may still incur legal fees in bringing the claim to tribunal.
In my experience, where there is a clear account of sexual harassment by a victim in a workplace, the cases tend to settle well before there is a hearing. Often they settle before any claim needs to be brought. This greatly reduces the pressure on the victim who is able to then move on without fear of further conflict and proper arrangements can be made to repair any damaged working relationships.
Verity Slater is an employment partner in our Truro office. To discuss the content in this article or any other HR issue call 01872 265100 or email email@example.com