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Partners Employment Lawyers - Sex and the City at Work - #MeToo presentation at The Law Society

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Partners Employment Lawyers - Sex and the City at Work - #MeToo

1. #MeToo – where are we now?
2. 3 case studies and group discussion: -
- Dismissed for dancing the Macarena (office parties),
- When infatuation becomes stalking
- Young people, self-harm and office affairs
3. Principles of Discrimination law and defending sexual harassment claims

Informative, lively and interactive workshop looking at the current legal challenges for employers.

Published in: Law
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Partners Employment Lawyers - Sex and the City at Work - #MeToo presentation at The Law Society

  1. 1. Sex and the City at work Partners Employment Lawyers Afternoon Update Thursday 28th November 2019 www.partnerslaw.co.uk Hina Belitz 02073746546 - 07809694400 All legal work is carried out through Excello Law Limited who are authorised and regulated by the Solicitors Regulation Authority.
  2. 2. Hina Belitz Hina Belitz is a senior employment lawyer, author and trainer with over 20 years’ experience building her career within major City Law firms including DLA Piper, Pinsent Masons and Dentons before establishing her own practice in 2006. Hina acts for a wide range of companies as well as for international royalty, and UK-based embassies advising on employment law, strategy and board level decision making. She also advises senior executives on termination and settlement agreements. The most substantial part of her work is with Corporations advising on law and strategy in areas such as redundancy, difficult employees, TUPE and corporate re-organisations. Hina co-authored the ‘Penguin Guide to Employment Rights’ with preface by Cherie Booth, barrister and wife of Tony Blair Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  3. 3. WHAT OUR CORPORATE CLIENTS SAY - • ‘We appointed Hina and her team to represent us in protracted Employment Tribunal proceedings involving complex legal issues and a difficult personality. Hina and her team guided us with great care and focus and her professional consultative style assisted us in making key strategic decisions. We won the Employment Tribunal claim hands down which we know deflected much larger threatened proceedings. This was an important case for us as we were able to publicly demonstrate that we will stand against those who unfairly challenge us when we have sought only to do the right thing. This was a great victory not only for the management, but because of the message it sent to everyone in the company. Hina’s guidance, along with the hard work of her dedicated team, meant we received the advice, and representation necessary to enabled us to achieve this outcome.’ • NICK WATSON, DIRECTOR, PEARL & COUTTS LTD • ‘Hina was a most reassuring presence at a difficult time. Everything was clearly explained and she was most capable in expediting an acceptable outcome. She was easy to speak to and most efficient in dealing with other parties. I highly recommend her.’ - Head Teacher at a major private school, London • ‘Thank you so much Hina for all your support and wise counsel. We couldn't have survived it without you.’ - JK, HR, Major international Children’s Charity • ‘A special thanks to Hina Belitz for her interesting talk on what we must take into account before employing someone at any level. She carried us through what could be a “heavy weight” topic with such ease that we could have listened to her for hours!’ • MARILENA NARBONA, THE ATHENA NETWORK • ‘I have worked with Hina Belitz on numerous complex employment issues within our business. We have an open and consultative relationship which ensures risks are addressed in a consistent manner. This has led to the honesty and openness I rely on to make key strategic decisions for the business.’ • HEAD OF HUMAN RESOURCES & RECRUITMENT, BUSINESS MONITOR INTERNATIONAL Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  4. 4. • WHAT OUR SENIOR EXECUTIVES CLIENT’S SAY - • ‘I am grateful to Hina and team for efficiently and tactfully handling my case. I urgently required expert legal advice and this was expedited. The team's attention to detail and significant experience were apparent throughout. I wouldn't hesitate to recommend Partners Employment Lawyers.’ – DL • ‘I was very nervous and unsure about my situation, however, right from the initial meeting Hina and her team guided me and managed my expectations in a very personal and professional manner. They negotiated on my behalf a package which reflected the situation and was fair so that I can maintain professional relationships with the firm for the future. A win for both sides. I would happily recommend Partners Employment Lawyers to anyone.’ • KP, SENIOR EXECUTIVE, CITY OF LONDON • ‘I recently used Hina Belitz and found Hina & Zahra to be very reliable, informative and willing to give up her time to answer my emails, calls and questions swiftly. She also helped me get the outcome I had hoped for. Highly recommend’ – ND • ‘I found Hina Belitz first class. Hina and her colleague Zahra were so supportive, extremely responsive and were brilliant at keeping me updated on events. They care and I would highly recommend them! Superb !!’ –JM • ‘Hina and Zahra were brilliant. They gave me an outstanding legal service with the best advice and support. Definitely go to these guys!’ –AT Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  5. 5. What have we been up to? Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  6. 6. INTERNATIONAL #METOO SEMINAR US/INDIA/UK Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  7. 7. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  8. 8. THE TIMES NEWSPAPER Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  9. 9. Today’s session #MeToo – where are we now? Legal regulation of sexual harassment Case studies and group discussions Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  10. 10. Sexual Harassment Scandal that rocked Hollywood Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  11. 11. Harvey Weinstein The #MeToo movement began to spread virally in October 2017 as a hashtag on social media in an attempt to demonstrate the widespread prevalence of sexual assault and harassment, especially in the workplace. The Harvey Weinstein revelations in 2017 highlighted a surprising ignorance about an issue that affects every workplace at some time to some degree. So how common is it, why don't more women report it, what are the risks - and what should be done? Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  12. 12. #MeToo Timeline How far have we come? & How far do we need to go? (https://www.refinery29.com/en-gb/2018/10/213189/me-too-movement-history-timeline-year-Weinstein) Research commissioned by the BBC - 40% of women and 18% of men out of 6,206 had experienced some form of unwanted sexual harassment in the workplace Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  13. 13. • 2006: Activist Tarana Burke founds the non-profit organisation Just Be Inc., which serves survivors of sexual harassment and abuse. Burke calls her non-profit's movement “Me Too’’. • October 6, 2015: Ashley Judd writes an essay in Variety detailing being sexually harassed by a then-unnamed media boss in a hotel room, who she now says was Harvey Weinstein. • July 6, 2016: Gretchen Carlson files a sexual harassment suit against Fox News head Roger Ailes, setting off a stream of similar allegations. • February 19, 2017: Uber employee Susan Fowler publishes a 3,000 word essay about her “very, very strange” year at Uber, in which she describes a toxic workplace culture where sexual harassment and misconduct occurred frequently. • April 1, 2017: An explosive New York Times article details five women’s allegations of sexual harassment and misconduct against Fox News anchor Bill O’Reilly • October 5, 2017: Along with other actresses and former Weinstein Company employees, Ashley Judd accuses Weinstein of sexual harassment — this time, on the record — in Jodi Kantor and Meghan Twohey's incriminating New York Times story. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  14. 14. • October 12, 2017: Roy Price, head of Amazon Studios, is suspended from his position after producer Isa Hackett accuses him of sexual harassment • October 16, 2017: The #MeToo hashtag movement is born on Twitter after Alyssa Milano encourages people to share their stories of sexual harassment and abuse in order to illustrate the near universality of the problem. • October 19, 2017: Repercussions of the #MeToo movement begin to affect many industries. Lockhart Steele, Vox Media’s editorial director, is fired for sexual harassment. • October 29, 2017: Anthony Rapp tells BuzzFeed News that Kevin Spacey made a sexual advance at him when he was 14. • November 8, 2017: A month before All the Money in the World is set to premiere, director Ridley Scott reshoots all of Kevin Spacey’s scenes with Christopher Plummer, erasing Spacey (who played J.P. Getty) from the film. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  15. 15. • November 9, 2017: Four women accuse Roy Moore, the Republican candidate for U.S. Senate in an Alabama special election, of sexual misconduct in a Washington Post article. • November 9, 2017: Comedian Louis C.K. is accused by five women of sexual misconduct. • November 17, 2017: Senator Al Franken is accused of inappropriate groping during a 2006 USO trip by radio host Leann Tweeden. • November 29, 2017: The Today Show begins with the announcement that Matt Lauer has been fired by NBC for sexual misconduct. • December 4, 2017: President Donald Trump enthusiastically endorses Roy Moore, the Alabama Senate candidate accused of sexual misconduct, on Twitter. • December 6, 2017: Time Magazine names "the Silence Breakers," the men and women who spoke about their experiences with sexual misconduct, as Person of the Year. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  16. 16. • December 7, 2017: In an L.A. Times op-ed, Dylan Farrow questions why her father, Woody Allen, has been spared from intense scrutiny by the #MeToo movement. Farrow has long maintained that Allen sexually assaulted her when she was seven years old. • December 19, 2017: Women factory workers at Ford go on the record about rampant sexual harassment at two Chicago plants in a New York Times exposé. • January 1, 2018: Time's Up, an initiative spearheaded by 300 women working film, TV, and theatre, is announced with an open letter in the New York Times and in the Spanish language newspaper La Opinion. The Time's Up Legal Defence Fund is aimed at supporting the sexual assault and harassment cases of less-privileged individuals. • January 7, 2018: The #MeToo and Time's Up movements are present at the Golden Globe awards. Actors and actresses participate in a red carpet "blackout" by wearing black gowns and Time's Up pins. • January 11, 2018: Five women accuse James Franco of inappropriate behaviour in an article in the L.A. Times. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  17. 17. • February 3, 2018: In a New York Times article, Uma Thurman recalls the time Harvey Weinstein allegedly forced himself on her in a London hotel room. • May 4, 2018: Writer Zinzi Clemmons claims that writer Junot Díaz forcibly kissed her at a workshop. • May 25, 2018: Harvey Weinstein turns himself into New York authorities to face rape charges related to an accusation by Lucia Evans. • August 6, 2018: Ronan Farrow releases yet another bombshell piece in The New Yorker, this time detailing six allegations of sexual misconduct against CBS CEO Les Moonves. • September 4, 2018: Los Angeles District Attorney's Office announces that it will not file sexual assault charges against Kevin Spacey and actor Steven Seagal. • September 25, 2018: Bill Cosby is sentenced to three to 10 years in prison for sexual assault. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  18. 18. • October 5, 2018: One year after his outing in the Times, Harvey Weinstein sits in his New York apartment on house arrest, awaiting trial for two counts of criminal sexual act in the first degree, two counts of rape and two counts of predatory sexual assault. He faces a potential life sentence. • October 18, 2018: More than 400 women sue USC, claiming that campus gynecologist Dr. George Tyndall sexually assaulted them. • November 1, 2018: Google employees stage a worldwide walkout to protest the handling of sexual misconduct allegations against senior employees. • December 2, 2018: Neil deGrasse Tyson is accused of sexual misconduct. • December 21, 2018: Five male models file a lawsuit in New York federal court alleging sexual assault and exploitation by photographer Bruce Weber. • January 3, 2019: The documentary Surviving R. Kelly begins a six-episode, three-night run on Lifetime. The reaction online is immediate, prompting new survivors and allegations to come forward and have a massive impact on public sentiment around the singer. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  19. 19. • February 5, 2019: In conversation with a reporter, Pope Francis acknowledges for the first time the sexual abuse of some nuns by priests, including the use of nuns as sex slaves. • February 13, 2019: Musician Ryan Adams is accused of sexual misconduct by multiple women, for behaviour ranging from emotional abuse to manipulation to graphic texting with an underage fan and aspiring musician. • February 22, 2019: R. Kelly is charged with 10 counts of sexual abuse by the Cook County state’s attorney in Chicago. Three of the alleged survivors were underage. Kelly pleads not guilty. • March 21, 2019: Six women accuse Michael H. Steinhardt, a New York billionaire and active philanthropist, of propositioning them or making sexual requests when they request donations to various charities and nonprofits. • May 30, 2019: R. Kelly is charged in Cook County with 11 new counts for incidents that took place between 2009 and 2011. The charges include aggravated criminal sexual assault against a minor, which can carry a sentence of up to 30 years in prison. • July 7, 2019: Billionaire hedge fund manager Jeffrey Epstein is arrested and charged with sex trafficking in New York and Florida. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  20. 20. • August 10, 2019: Jeffrey Epstein dies by suicide in prison while awaiting trial in New York on sex trafficking and conspiracy charges. • August 13, 2019: Nine women tell the Associated Press that opera singer Plácido Domingo sexually harassed and assaulted them. • August 13, 2019: Katy Perry is accused of sexual misconduct by her “Teenage Dream” music video co-star, Josh Kloss. Weinstein – 80 Women, 4 decades. Trial 6 January 2020. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  21. 21. And now… In the wake of #MeToo, a wide range of employers found themselves scrambling to respond to allegations of sexual harassment in their own organisations or sectors. We’ve seen that victims of sexual harassment in the workplace have undoubtedly been emboldened by the #MeToo movement. Claims are on the rise. #MeToo Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  22. 22. Discrimination and Harassment at work Harassment vs Bullying What is the difference? Legal regime for bullying v harassment Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  23. 23. Protected Characteristics Protected Characteristics • Age • Disability • Gender reassignment • Marriage and civil partnership • Pregnancy and maternity • Race • Religion or belief • Sex • Sexual orientation Harassment • Age • Disability • Gender reassignment • Race Marriage and civil partnership • Pregnancy and maternity • Religion or belief • Sex • Sexual orientation Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  24. 24. The Legal Regime There are three definitions of harassment contained in section 26 of the Equality Act 2010. General definition A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either: • Violating B's dignity, or • Creating an intimidating, hostile, degrading, humiliating or offensive environment for B. In deciding whether conduct shall be regarded as having the effect referred to above, the following must be taken into account: • The perception of B. • The other circumstances of the case. • Whether it is reasonable for the conduct to have that effect. (The relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation (section 26(5)). Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  25. 25. Conduct of a sexual nature A also harasses B if A engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to in the general definition. This is usually referred to as "sexual harassment". Less favourable treatment on rejection of or submission to conduct of a sexual nature A also harasses B if: • A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex. • The conduct has the purpose or effect referred to in the general definition. Because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. The Legal Regime Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  26. 26. •Unwanted conduct – but how was I to know it was unwanted until I tried it? IS THIS SEXUAL HARASSMENT? Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  27. 27. • There is no need for B to have already made it clear that A’s conduct is unwanted in order for it to constitute harassment. In Insitu Cleaning Co v Heads [1995] IRLR 4, the employer’s argument that a man could not know whether his conduct was unwanted until it had been rejected, failed . The EAT said that would-be harassers cannot be allowed to “test the water” with impunity to see whether their conduct was objectionable to potential victims if their conduct is serious enough to reasonably be considered as harassment. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  28. 28. •She liked it at first, then just suddenly turned on me, had a change of heart. Anyway, it’s just banter. IS THIS SEXUAL HARASSMENT? Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  29. 29. • In Smith v Renrod Ltd ET/1400166/15, Miss Smith was employed as a sales executive in a car dealership and claimed she had been sexually harassed by her manager. She alleged his behaviour included telling her that he had not heard what she was saying because he was “thinking about picking you up and fucking you on the desk”, attempting to kiss her, pestering her about her private life and making speculative comments about her sex life and relationship with her boyfriend who also worked at the dealership. • The tribunal found that there was a culture of sexual banter and sexual behaviour in the workplace in which both Miss Smith and her manager actively participated. It concluded that Miss Smith was not shocked by the day-to-day banter between colleagues and this did not go too far. However, it found that the comments made by her manager did go too far and the type of personal innuendo and questioning he engaged in was offensive to her and unwanted conduct. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  30. 30. •It’s not sexual harassment, we’ve been in a relationship for 18 month’s. We only broke up two days ago. IS THIS SEXUAL HARASSMENT? Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  31. 31. • A v Chief Constable of West Midlands Police UKEAT/0313/14, the EAT upheld a tribunal’s decision that an employee had been sexually harassed for two days after an 18-month relationship with her work colleague ended. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  32. 32. •My God! Sexual banter is the culture in this place. She’s even joined in at times. And now she say’s it’s gone too far? IS THIS SEXUAL HARASSMENT? Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  33. 33. Myth : “Banter” is not sexual harassment. Employment lawyers will often hear as a defence to a sexual harassment claim that “it was only banter”. Time and again tribunals have rejected the notion that a harassment claim can be defended on the basis that sexist remarks were “only banter”. • Key case: In Driskel v Peninsula Business Services, the Employment Appeal Tribunal (EAT) upheld a claim by a female manager that she had been discriminated against by her head of department when she was seeking a promotion. • Remarks from the head of department included that she should wear a short skirt and see-through blouse showing plenty of cleavage if she wanted to be successful during a promotion interview. • The claim was successful despite the head of department thinking that his comments were acceptable banter. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  34. 34. •We weren't talking to her. We just downloaded some …pictures. And anyway, she never complained, how could she? She never saw it, see. IS THIS SEXUAL HARASSMENT? Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  35. 35. • Moonsar v Fiveways Express Transport Ltd UKEAT/0476/04 makes it clear that the conduct does not have to be directed a t the claimant. Mrs Moonsar was a data entry clerk who worked evening shifts. On three occasions she was aware of male colleagues downloading pornographic images onto computer screens. The claimant had not been shown the images, and she had not made any complaint at the time. The tribunal found no discrimination. However, the EAT substituted a finding of discrimination, holding that this was treatment which would obviously undermine the claimant’s dignity. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  36. 36. •Well she’s always making fun of my bald head, calling me ‘baldi’. So what if I call her ‘big tits’. Same thing isn’t it? IS THIS SEXUAL HARASSMENT? Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  37. 37. • Myth : A single comment that is not repeated cannot be sexual harassment. It is well established from case law that a single act can fall within the definition of unwanted conduct under the Equality Act 2010. For example, no employment tribunal in the land would have any sympathy for a harasser who is dismissed after committing a one-off serious act of sexual misconduct, even if further harassment does not follow. • Key case: In Insitu Cleaning Co Ltd and another v Heads, the EAT upheld a tribunal’s finding that a woman had been sexually discriminated against when a manager said to her “hiya, big tits”. • The EAT held that the tribunal was entitled to conclude that the one incident was sufficiently serious to amount to sexual harassment. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  38. 38. •Well she never complained about it. IS THIS SEXUAL HARASSMENT? Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  39. 39. • Myth : It is not sexual harassment if the victim does not complain. Employment tribunals recognise that the employee is normally in an unequal relationship with the harasser, and that it is a natural reaction not to wish to create further conflict. A lack of action from the victim can often be attributed to a fear of losing employment. • Key case: In Munchkins Restaurant and another v Karmazyn and others, the EAT upheld a claim that a restaurant manager sexually harassed four waitresses. • This was despite the waitresses putting up with the manager’s conduct over a significant period of time, and even initiating talk of a sexual nature as a method of coping with and diffusing his behaviour. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  40. 40. •I only ever complimented her… IS THIS SEXUAL HARASSMENT? Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  41. 41. • Myth : A compliment cannot be sexual harassment. It is sometimes commented that a man who compliments a woman on her appearance at work cannot be committing sexual harassment. While an innocent remark between colleagues who know each other well is unlikely to constitute harassment, tribunals will look at the context in which a remark is made. In many cases, comments about a woman’s appearance will be deemed to be inappropriate in the workplace. • Key case: In Urbanska-Kopowska v McIlroy and another t/a Mac’s Quality Foods, the tribunal awarded £65,000 to a Polish woman who was sexually harassed by another worker. • Allegations included that the worker said to her that “she was his type and he would eventually have her” and that she had a “nice bottom”. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  42. 42. Myth: A subordinate cannot sexually harass a manager. While sexual harassment often involves the abuse of power by a senior manager over an employee, there is nothing to stop an employee, or a group of employees, from being liable for harassing a manager. For example, sexual harassment could occur where a female manager is managing mostly men in a male-dominated workplace. Key case: In Fairbank v Royal Mail Group Ltd, the employment tribunal upheld a sexual harassment claim from the only female manager in a predominantly male environment. The tribunal found that the male staff carried out a campaign of bullying the female manager, including one employee saying to her that “the only reason you have got this job is because you have tits and a fanny”. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  43. 43. Purpose ‘But the purpose wasn’t to offend her’ Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  44. 44. . In Majid v AA Solicitors Ltd (t/a AA Solicitors) and another ET/2409586/13, Miss Majid was a young woman who was employed in a paralegal position at AA Solicitors by Mr Ali, the owner of the firm and its sole solicitor. Mr Ali subjected Miss Majid to a course of sexual harassment which started in her interview and continued up to and beyond her dismissal. The tribunal found that, although it was not Mr Ali’s purpose in carrying out these acts to create an intimidating, degrading or hostile environment for Miss Majid, that was the effect of his conduct. The EAT dismissed Mr Ali’s appeal, specifically rejecting his arguments that his unwanted attentions were merely “gauche and insinuating”. Rather, in the EAT’s judgment, Mr Ali’s conduct violated Miss Majid’s dignity as a worker and gave the impression she was employed for his pleasure and gratification rather than to work or develop her legal skills. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  45. 45. Hypersensitive? She’s just over- reacting… • whether the claimant perceives themselves to have suffered the effect in question (the subjective question); and • whether it was reasonable for the conduct to be regarded as having that effect (the objective question). Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  46. 46. Richmond Pharmacology Ltd v Dhaliwal - their paths would probably continue to cross, unless D was "married off in India". ‘Not every racially slanted adverse comment would constitute the violation of a person's dignity: while it was very important that employers and tribunals were sensitive to the hurt that could be caused by [racially] offensive comments or conduct, it was also important not to encourage a culture of hypersensitivity.’. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  47. 47. Young junior employee and CEO become involved in an affair. She has only a few month’s service At a work party, the CEO, discloses that he’s already ‘had her’ pointing to the junior employee amongst the wider team. At this moment, the junior employee throws her drink at the CEO. She immediately apologises. As a result of this, the junior employee suffers with difficulty sleeping and socialising and the embarrassment drives her to self-harm. The employer raises performance concerns. Employee is dismissed. Case Study: Young people, self-harm and office affairs Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  48. 48. • Equality and Human Rights Commission guidance: examples of sexual harassment • A person imitates a sexual act at work that makes a colleague feel degraded. • An employer asks one of her workers if the worker is having sex with his boyfriend, which intimidates and humiliates him. • An employer displays a screensaver of a topless woman, which creates an offensive environment for other workers. • A man overhears a female colleague being subjected to sexually abusive language and this causes him offence. • A manager puts his hand up his assistant’s skirt during the office Christmas party. • An employee has had a relationship with his boss. When the employee ends the relationship, his boss spreads rumours about his sexual preferences at work. EXAMPLES OF SEXUAL HARASSMENT Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  49. 49. Bringing a claim Early conciliation Interim relief Anonymity and restrictive reporting orders Time limits Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  50. 50. Tribunal hearings Giving evidence Costs Remedies • To compensate for any financial loss the claimant has suffered because of the harassment • As compensation for injury to feelings • In rare cases, for aggravated damages or exemplary damages (or both) • To uplift the compensation by up to 25% where Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  51. 51. Vicarious liability Reasonable steps defence • Section 109(4) of the EqA 2010 provides that:Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  52. 52. Clean up the use of non-disclosure agreements (NDAs)/settlement agreements • NDAs in employment contracts • NDA use in settlement agreements • A chilling effect? The silencing of victims Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  53. 53. Real view from women asked to sign (NDAs)/settlement agreements “Non-disclosure agreements are sometimes used as a threat against employees. I was told that I must sign a settlement agreement for no money, or I would be ‘badmouthed’, not given a reference, and my new employer would be called and told about the harassment claim.” “The encouragement of signing the settlement agreement was made at the end of the day whilst I showed clear signs of anxiety, despair and hesitation in signing all my rights away.” “Re the non-disclosure agreement, my solicitor […] said in her view [the employers] were purposely trying to ramp up costs to add pressure on me. It was costing an amount beyond my means. I had no job. I was ill. […] I had no choice but to agree to sign.” • Women and Equalities Committee Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  54. 54. An individuals experience “I have been asked directly for sex while at work by a superior. I have been shown a pornographic video and asked for oral sex while at work by a line manager. I have been stalked by a line manager. I have been verbally harassed by a pair of male colleagues whose comments were sexually explicit and concerning the rape of women and intended to cause intimidation and distress for their personal amusement while at work. These are some of the most serious experiences but casual chauvinism and comments about my appearance, sexual desirability, and conversations that are demeaning or intended to insult women alongside inappropriate physical contact and inappropriate gaze has been a commonplace throughout my working life.” Individual’s story from submission by 38 Degrees (an organisation which campaigns for fairness, defend rights, promote peace, preserve the planet and deepen democracy in the UK - claims 1.9 million UK members) Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  55. 55. The impact of workplace sexual harassment: individuals’ experiences “I was absolutely humiliated, I felt deep shame and was treated horrifically by my own colleagues and employers. I was the only woman […] in my place of work and when it came to the crunch, the boys’ club rallied around for each other. Who was I supposed to go to for help? No-one cared and no-one listened. I was alone.” “I am deeply traumatised by everything. I do not feel safe ever. […] I have to wear shoes I can run away in.” “The impact isn’t mild: it makes women less inclined to speak up as it draws attention to themselves when they are already the unwilling recipient of attention. This denies their contribution to the organisation; it reduces the likelihood of performing well and so reducing their chance of career progression.” “The impact is as with most forms of abuse of power: it can leave people feeling humiliated and scared, but also trapped.” (Individuals’ stories from submission by NGO Safe Space) Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  56. 56. How employers respond to complaints of sexual harassment: individuals’ experiences “I was told ‘I am just jealous, I want more hours, and to shut up and get on with it.’ I spoke out against them, I got suspended, and I left on the same day, so I could continue to speak out against them.” “I talked to my boss about the issue, who told me to stay away from the individual concerned and block any calls. I was moved to another project. I asked about reporting the man’s actions to his company, but was told that it was my word against his, that he would certainly deny it, that it might damage the relationship between the two companies or put the contract— multi-million and several years duration—at risk.” “When I complained informally I was ignored. When I raised a formal grievance the behaviour of my employer became extremely hostile. […] My employer had a lengthy grievance procedure that looked impressive on paper, but the reality was that the aim was not to listen and learn from complaints but to protect the employer.” “The issue was not investigated other than asking the Senior Director if he had done it, then the company officially branding me a liar when the Senior Director denied it, […] making the continuance of my role untenable. Women & Equalities Committee Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  57. 57. BREAK Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  58. 58. Case study Dismissed for dancing the Macarena (office parties) Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  59. 59. UK senior employee visiting office in India After the conclusion of a project a boat party is held Employees enjoyed music, dance and some alcohol UK senior employee performed the steps of a well-known and established dance which is culturally normal, like the Macarena in the UK On her return to the UK, the senior employee was suspended and investigated by UK HR for unprofessional behaviour, including unwanted conduct towards colleagues unacceptable behaviour at a work social event Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  60. 60. The investigation was not prompted by a concern or complaint raised by anyone present on the boat. Witness statements were taken and none of the key people directly involved said, even in statements, that the conduct was in any way unwanted and there was plainly no impact on dignity in the workplace in any way. The application of anonymity was wrongly applied. Witnesses did not want to be identified and therefore there names were omitted from the statements. Witness statements were summarised and full statements were not provided to the employee. Evidence had been "rolled together’’. Consideration was not given to cultural differences. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  61. 61. Case study When infatuation becomes stalking Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  62. 62. • In 2013, employee A made a complaint about employee B after a conversation about hairspray. This complaint was resolved after an informal meeting with HR in 2013. • In 2015, employee A complained that employee B had followed her by getting on the same tube train as her. • Employee B’s response was that this was true, but he got on the tube train because that was the route he was taking that day to attend a dance class. Employee B made a complaint that Employee A had made false accusations against him. • HR investigated the 2015 complaint and concluded that employee A genuinely feels harassed, but, considering the inconclusive evidence, did not recommend disciplinary action for either employee A or B. Instead, she recommended that: “both parties make a conscious effort to not come into any kind of contact with each other”. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  63. 63. • In 2018, HR moved employee A and B to work on the same floor, only three rows apart. • Employee B went to HR with his concerns about being placed in the same proximity to employee A. • Employee A and B were reminded that they should not come into contact in communal areas (such as the coffee area or the lifts) that it would be best for one of them to leave so as to avoid interaction. • Employee A made complaints to HR about employee B • Employee B had on a number of occasions arrived in the kitchen when she was there even though there was another kitchen 2 minutes further away. He chose to use the one closest to her for ease and convenience. • Employee B endeavoured to clean a mark off the groin of his trousers in her presence. • Employee B and A were in the office alone together early in the morning, employee B would pass by employee A’s desk and stop and stare at her without saying anything and would pass by her desk on several occasions. • Employee B used a microwave above the one she had been using (rather than using one further away from her) resulting in employee B having to put his arm across her. • Employee B sacked for gross misconduct due to the microwave incident. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  64. 64. PREVENTING SEXUAL HARASSMENT Monitoring Zero- tolerance workplace culture Effective anti- harassment policies Staff training Reporting mechanisms Preventing victimisation Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  65. 65. Make enforcement processes work better for employees Employers’ policies and procedures It is important to ensure that robust, fair and effective systems are in place. Even where policies and practices are in place, these are unlikely to be effective if they are not supported by action to uphold the law, training and culture change. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  66. 66. • Effective measures an employer can consider taking include: • Investigating the extent of the potential problem in its business. identifying areas of risk • Creating a workplace culture of zero-tolerance to harassment and where all employees are encouraged to report inappropriate behaviour • Having an effective anti-harassment policy that clearly sets out what conduct is unacceptable, the employer’s zero- tolerance approach to such conduct, how employees can report inappropriate conduct, the process that will be followed and the support available for victims of harassment and those who report it • Having effective reporting mechanisms in place and ensuring all employees are aware of them • Ensuring managers deal with complaints of harassment quickly, effectively and in a sensitive way, that the perpetrators of harassment are sanctioned, and those who report harassment are protected from victimisation • Providing anti-harassment training for all employees, given from induction onwards, and specific training for managers in how to deal with complaints of harassment • Ensuring third parties such as suppliers and customers are aware of the employer’s zero-tolerance policy to harassment and that employees are aware that it will take reports of harassment by third parties seriously • Making it clear to employees that harassment of all those they come into contact with at work will not be tolerated • Ensuring its policies provide adequate protection and the right to report sexual harassment to all workers • Requiring settlement agreements in sexual harassment claims to be signed off or reviewed at board level to ensure the effective monitoring of the number of claims Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  67. 67. Key Points • Put sexual harassment at the top of the agenda • A one-off incident can amount to harassment: the victim need not have made the perpetrator aware that the conduct was unwanted. • Conduct can amount to harassment if it is related to a relevant protected characteristic. This includes conduct engaged in by reason of a protected characteristic, and conduct that is related to a protected characteristic because of the form it takes. • The Equality Act 2010 protects an employee against harassment based on someone else's protected characteristic, or based on the perception that they have a protected characteristic. • There is no need for a comparator; the claimant does not have to show that they were, or would have been, treated less favourably than another person. • To amount to harassment, A's conduct must have the purpose or effect of violating B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Where B claims that the conduct had this effect (although this was not A's purpose), the tribunal must consider whether it was reasonable for the conduct to have that effect. • Marriage and civil partnership, and pregnancy and maternity, are not relevant protected characteristics for harassment purposes. However, unwanted conduct related to these matters could amount to sex or sexual orientation harassment. Partners Employment Lawyers Hina Belitz - hina@partnerslaw.co.uk 02073746546 - 07809694400
  68. 68. Thank You For further information please: Call us: 020 7374 6546 / 07809694400 Email us: hina@partnerslaw.co.uk Website – www.partnerslaw.co.uk All legal work is carried out through Excello Law Limited who are authorised and regulated by the Solicitors Regulation Authority.

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