#MeToo – Sexual discrimination in the workplace
The Harvey Weinstein scandal broke in October 2017 and the #MeToo hashtag picked up momentum on a global scale across social media across sectors far and wide, demonstrating the widespread prevalence of sexual discrimination in the workplace.
Since then, scandal after scandal has dominated the media, ‘outing’ politicians and movie stars. As their star comes crashing down, campaigns against sexism and sexual harassment continue to grow.
The allegations keep coming
At the BAFTAs we saw a public display of solidarity by women and their stand against discrimination by dressing head to toe in black as opposed to the array of colours that would usually be adorned on the red carpet. Women shunned the usual glamour in unison against the suffering in silence endured over decades by many in an industry where discrimination is now openly known to have been rife.
At the Oscars, red carpet coverage was shrouded as the usual anchor of choice, Ryan Seacrest, is currently facing allegations of sexual harassment by his ex-publicist, all of which he vehemently denies. Many celebrities have shown support for Seacrest, but many others have shunned him in silent support of the #MeToo movement.
190 British actresses, including Emma Watson and Kate Winslet, have signed an open letter of intent stating:
‘This movement is bigger than just a change in our industry alone. This movement is intersectional, with conversations against race, class, community, ability and work environment, to talk about the imbalance and abuse of power.’
The intention behind the letter is to call for an end to what seems to be ‘tolerance’ of sexual harassment, abuse and discrimination not only in the entertainment industry and most notably Hollywood but also across all working sectors impacting all genders. It has been revealed that although hundreds of women have found the courage and support to speak out about the discrimination and harassment they endured, there are still thousands who are either too scared to speak up or still believing that what they are the recipients of could never truly be harassment.
What is sexual harassment?
The Equality Act 2010 generally defines sexual harassment as unwanted conduct related to sex (behaviour) which has the effect of violating dignity or creating a hostile, degrading, humiliating or offensive environment.
There is a second definition which relates to unwanted conduct of a sexual nature which has the same purpose or effect as in the general definition. Whilst there is clearly some overlap, conduct of a sexual nature covers verbal and non-verbal physical conduct including unwelcome sexual advances, touching, forms of sexual assault, jokes, display of pornographic photos or images, and sending emails with content of a sexual nature.
A crucial point to note is that although the conduct may not have been carried out by the perpetrator with the ‘purpose’ of having that effect (for example a ‘joke’ email), if it has that ‘effect’ (someone is offended by it and does feel violated), it is deemed unlawful if it is ‘reasonable’ for the conduct to have had that effect. This gives another layer to the law; it is thought to be a controversial test but has been created this way to prevent those who may be oversensitive making claims in situations which no one else would consider as offensive.
Sexual harassment is not women-specific. Men have come forward, particularly in the sporting world which is renowned for cover ups of abuse over the years. Minority groups such as the trans community have also sought strength and courage from the recent press attention and the #MeToo movement, coming forward and speaking up about the harassment they face.
Code of practice
In 1991 the European Commission adopted a recommendation on the protection of the dignity of women and men at work. Annexed to the recommendation is a code of practice on measures to combat sexual harassment. The code sets out preventative steps and some useful guidance on how to handle grievances relating to sexual harassment. The Employment Tribunal is required to take the code into account when making a decision where relevant and appropriate.
A big issue which is prevalent in sexual harassment cases and any case centred around an allegation of sexual misconduct is whether the conduct was unwanted.
The Employment Appeal Tribunal has said that some conduct is obviously unwelcome unless invited. With less obvious behaviour, the question is whether the person, by words or behaviour, has made it clear that they found the conduct unwelcome. There is no need for a public fuss, for example walking out of the room may be sufficient. The test is that a reasonable person needs to understand that they were rejecting the conduct.
It is noteworthy at this juncture to clarify that it is also deemed to be harassment if the worker is then treated less favourably (for example in the Weinstein allegations, actresses not being offered the role in a film), because the unwanted conduct of a sexual nature was rejected.
What should you do as an employer?
As an employer, you should always ensure that complaints are taken seriously whether they are made informally or formally via the grievance procedure.
Employees should be comfortable in the knowledge that there is a framework of policies and procedures that will protect them in the event of an incident. The Weinstein and Westminster sexual harassment stories should be a wake-up call to all employers to review their policies and procedures, bring them up to date and take advice both to deal with existing issues and to prevent claims arising in the first place.
 Reed and Bull Information Systems Ltd v Steadman  IRLR 299, EAT
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.