Sexual Harassment or Banter?

HR Dept North Birmingham

What is the #Metoo Movement?

Whilst #Metoo went viral in October 2017 following allegations that Harvey Weinstein, an American Film Producer had sexually harassed over 80 women, the phrase and its intent has been used as early as 2006 and certainly sexual harassment has been around for much longer.

However, this movement in October 2017 remains iconic, following the allegations against Wenistein.

This hashtag rapidly went viral online, specifically on social media in an attempt to demonstrate the widespread prevalence of sexual assault and sexual harassment, especially in the Workplace.

A number of high-profile celebrities responded to this social media frenzy – sharing the “Metoo” hashtag - including Alyssa Milano, Gwyneth Paltrow, Ashley Judd, Jennifer Lawrence and Uma Therman to name a few.

Other high profile celebrities soon followed.

Did you know?

• Half of British women and a fifth of men have been sexually harassed at work or a place of study.

• Of the women who said they had been harassed, 63% said they didn't report it to anyone, and 79% of the male victims kept it to themselves.

• 35% of women have heard comments of a sexual nature being made about other women in the Workplace.

• 32% of women have been subject to unwelcome jokes of a sexual nature at work.

• 23% of women have experienced unwanted touching at work e.g. hand on knee or lower back.

• Fifty-three percent of businesses reported that after #MeToo began in 2017, their reported sexual harassment cases went up.

Only four percent saw a decrease.

Sources – BBC Survey 2017 and “Still just a bit of banter? Sexual harassment in the workplace in 2016” TUC in association with Everyday Sexism Project.

So what do SMEs need to do to protect themselves?

The best way to protect yourself and your business is to understand what sexual harassment is.

“It’s just a bit of banter”

In 2018 Sir Phillip Green, Chairman of Arcadia Group (a retail company that includes Topshop, Topman, Wallis, Evans, Burton, Miss Selfridge, Dorothy Perkins and Outfit) hit the headlines as he obtained an injunction preventing The Telegraph reporting allegations of sexual harassment against him.

This still ended up all over the press including allegations such as:

• Spanking an employee on the bottom

• Making comments such as “nice melons”, “you are looking perky today” and “you’re just a naughty girl” Sir Peter Green dismissed the allegations as banter saying “I’ve been in business for more than 40 years” and “There has obviously from time to time been some banter and a bit of humour, but as far as I’m concerned there was never any intent to be offensive.”

It is important to note that something can still be considered sexual harassment even if the alleged harasser didn't mean for it to be. Harassment can come in many different forms and is not necessarily overt – banter, jokes or unwanted attention based on gender difference can be harassment.

It also doesn't have to be intentionally directed at a specific person.

Also, instances of harassment may also still be an employment related issue even if they occur outside of normal working hours.

Factors to be considered will include:

• Whether the incident took place on company premises

• Whether the even took place immediately after work

• Whether it was a work event – e.g. a leaving party, an offsite meeting or conference

So what is Sexual Harassment?

There are a lot of sexual harassment cases in the workplace which are a very long way from rape - and not all cases are gross misconduct.

The Equality Act 2010 categorises sexual harassment under unlawful discrimination.

It describes 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 for them.”

The term covers any behaviour of a sexual nature that may be unwanted, inappropriate, and intimidating. Sexual harassment can happen to anyone at any time, in any place. This includes the workplace.

Examples of sexual harassment in the workplace can include:

• Inappropriate or unwanted physical touching or contact without consent

• Sexual comments and jokes, either in person or over email

• Comments on body and clothing

• Questions about sex life

• Showing sexual photos or videos

• Intruding on personal space

• Sexual assault

Prevention is better than cure – How can you protect yourself against claims and also protect your reputation?

Remember – any Employment Tribunal hearings and outcomes are made public and are easily searchable and accessible on the Internet, but it’s more than just your reputation – for successful claims you will be required to pay Injury to Feelings and Financial Losses – and there is no cap on loss of earnings!

To safeguard yourself and your business, consider taking the following steps:

• Ensure you have sound business awareness

• Implement training for your employees including refresher training

• Have clear and accessible policies and procedures in place

• Take complaints seriously and take appropriate action

• Be mindful of your company’s culture and consider changing it if necessary For further expert advice on avoiding sexual harassment and other HR issues, please do not hesitate to contact our small, friendly team on 0121 323 5488.