So you have been sexually harassed at work. What are your options?
Being sexually harassed at work? Here, Adrian Scotland, a solicitor specialising in employment law and workplace discrimination at Judge Sykes Frixou Ltd, shares his expert advice.
It feels like it should be obvious. However one of the striking things to emerge from the #metoo revelations is just how many women are unsure about what course of action (or indeed inaction) to pursue in the days, months and years following the trauma of being sexually harassed.
As an employment lawyer, practising in the heart of London, I have found this to be a common experience amongst victims. You think you know exactly how you would react, until it happens to you and you find yourself paralysed by indecision and often a lack of support, empathy or understanding of the issues. Sexual harassment can undermine a woman’s confidence and the associated distress and anxiety invariably leads to confusion and self-doubt.
For women calling #NotMyJob, here’s everything you need to know…
What is sexual harassment?
There are many resources available online that can help you understand how the law defines sexual harassment. However this is a complex area of law and Google can be a confusing and contradictory world. In plain English and general terms, sexual harassment can be described as unwanted, behaviour of a sexual nature, which creates an undignified, hostile, humiliating or offensive environment for the victim. Sexual harassment can be intentional but also can happen unintentionally, in which case the law considers both the subjective experience of the victim (e.g. did she feel humiliated?) and also an objective perspective (e.g. was it reasonable for her to feel humiliated).
It is not enough to just be informed about the law, you need to understand its practical implications and how to make it work in the context of your situation in order to secure your preferred resolution.
Establish your objectives
This may seem obvious, but before rushing into making allegations and submitting grievances it is wise to consider the end goal. Your objective will shape your approach and often dramatically. Some situations require more finesse and a more diplomatic tone and others demand nothing less than a sledgehammer. There are countless, context dependent considerations, but perhaps most significant is whether the woman wants to stay at the Company she works for or whether she has resolved to leave. If you plan to continue to work for the Company then you may be more concerned to preserve certain relationships and this can lead to a more diplomatic tone. However if your position has become untenable and you want out at the earliest opportunity, then you might not pull your punches. Everybody has their own preferences dictated by their personal circumstances.
If you are working with a lawyer, you should never accept pressure to proceed in a manner that you are uncomfortable with. Their role is to advise you on and support you in the formulation and execution of your strategy.
Whatever your objective, take notes. I cannot stress enough the importance of a paper trail. Witnesses to harassment are rare and witnesses who are prepared to stand up and be counted are rarer still. Human nature unfortunately dictates that the majority of colleagues appear to develop quite severe amnesia when you look to involve them in workplace disputes.
It may be controversial to say this, but the instinct of Human Resources personnel is generally to protect the Company and not the employee. You cannot take it for granted that they will conduct a fair or probative investigation into the incident. I have been involved in cases where HR departments have suppressed evidence of historical complaints of harassment made against the same individual.
In most instances it will be the woman’s word against the word of the perpetrator and HR will expect you to be able to produce notes or journal entries detailing the incidents. I was surprised once to hear an Employment Judge remark that she could not believe that anybody subjected to harassment, would not have recorded the event in a diary or journal of some description.
Notes should record the dates of the incidents, the context, details of any witnesses and where possible (and applicable) quote the precise phrases said.
Record your concerns in writing
Again this should be done promptly, whilst your recollection is fresh and to preserve your credibility. It ensures that there is an indisputable record of your complaints. If you are unsure who to send this to, your line manager and HR are generally the best starting point.
In addition to credibility, a written complaint is important because it has its own protected status. If you make a complaint about sexual harassment in good faith, even if you were mistaken or unable to prove the incident complained of, it is unlawful for your employer to subject you to reprisals (“victimisation”). This is an important comfort given most women anticipate a backlash if they are seen to be trouble-makers.
Employers are required to maintain and operate “Grievance Procedures”. This usually requires that you try to address matters informally in the first instance, before progressing onto a formal process.
If a complaint is not resolved informally, then the formal process is usually invoked and the Company is required to embark on a formal investigation often involving multiple meetings and personnel.
At the conclusion of the process the employer should issue a written decision either upholding or dismissing the various complaints outlined in the grievance. I should warn that it is rare for an employer’s internal grievance process to uphold an allegation of sexual harassment. More often than not some lesser consolatory finding will be made, featuring words such as “misunderstanding”, but there will generally be some recommendations with a view to minimising the risk of future misunderstandings and this can result in clearer workplace boundaries being instated or policies on sexual harassment and gender discrimination being dusted off and improved.
If you are unhappy with the grievance outcome, then you have the right of appeal. The appeal processes is often an expedited rehearsal of the original grievance, but undertaken and adjudicated on by different personnel.
Without Prejudice Discussions
During the course of a grievance process and particularly if it appears that relationships have seriously broken down, an employer may open “without prejudice” (crudely speaking: “off the record”) discussions. These invariably involve the Company making an offer of financial compensation to an employee on condition that their employment is terminated and that they sign-up to an agreement waiving the right to bring any claims in relation to their experiences and to keep the circumstances of their grievances confidential. Compensation can vary widely and we are routinely involved in negotiating substantially enhanced severance packages on behalf of employees who have been victims of harassment or discrimination.
The Employment Tribunal
If following the above steps you are not satisfied with the outcome, or if your employer is dragging their feet, you may wish to issue legal proceedings against them in the Employment Tribunal. In cases of sexual harassment it is often advisable to bring your claim against both the individual who harassed you and the Company, which employs you both.
Claims must usually be brought within 3 months of the incident complained of and prior to issuing proceedings you will ordinarily be expected to have exhausted your employer’s internal grievance letter process.
You will also first have to contact ACAS for the purposes of a process known as Early Conciliation. This is a free conciliation process in which an ACAS conciliator will attempt to broker a settlement between parties in the hope of avoiding the need for legal proceedings.
Discrimination laws, including sexual harassment, have become increasingly complex over the years. Whilst there is nothing to stop you attempting to deal with the above process yourself, it is more important than ever that you seek legal advice in this area. A good lawyer should work with you providing invaluable expertise as well as emotional support and reassurance during what can be a very intimidating and anxious experience in itself, let alone on top of the distress caused by the underlying sexual harassment. It is essential that you seek out a representative that specialises in employment law and discrimination claims and who can deal with your case cost effectively in accordance with your objectives. We would be happy to hear from you at Judge Sykes Frixou and if we are unable to assist you directly we will at the very least be able to introduce you to somebody who can.
Adrian heads up a team of lawyers, at Judge Sykes Frixou Ltd, who are heavily involved in workplace discrimination and related disputes.
Please note that this article and the other legal resources published on our site from time to time can only ever amount to brief and generalised commentary on the issues concerned. They do not constitute legal advice and neither we, nor Judge Sykes Frixou Limited are able to accept liability for any losses arising from the same. If you are affected by sexual discrimination or other forms of workplace mistreatment, you should approach a specialist solicitor directly for advice. It is important to do so quickly as statutory time limits will likely apply.