What bosses need to know about #metoo complaints
THE #metoo campaign shot to prominence in 2017 as a result of the sexual harassment allegations made against Harvey Weinstein. The movement has given victims of sexual harassment (both male and female) the confidence to raise allegations against their purported offenders. This often involves allegations in the work environment. However, a recent BBC documentary (Is this Sexual Harassment – available on iplayer) has shown a disparity exists between people’s general understanding of “sexual harassment” and the legal definition.
The programme highlights that, when it comes to making an assessment of whether something amounts to harassment, subjectivity is key. The crucial test is whether or not the conduct of one person (A) amounts to “unwanted conduct” which is of a sexual nature and has the “purpose or effect” of either (i) violating another person (B’s) dignity; or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. This means that the motivation for A’s conduct will not determine whether or not the conduct amounts to harassment. Instead it is the perception of B which is most significant. The documentary properly highlights the importance of the subjectivity of the legal test and shows that anything of a remotely sexual nature can amount to harassment. This is a stark message for employers who may be left fearing swathes of claims for harassment for issues arising in the workplace which, to an external observer, may appear relatively benign.
It fails to address, however, the complete legal position. Whilst it is correct that any conduct of a sexual nature can be perceived as sexual harassment, there is a further limb to the legal test which should not be disregarded. Although the key part of the test considers B’s subjective assessment of A’s conduct, the documentary overlooks that B must also be able to demonstrate that it was reasonable for them to perceive
It is important to have systems in place which allow concerns to be raised at an early stage
that A’s behaviour had the prohibited effect of either violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
As an example of this, an accompanying quiz on the BBC website questioned whether complimenting someone on their perfume amounts to harassment. The first limb of the test means that the answer will depend upon B’s interpretation of that compliment and the answer given is “yes”. However, when applying the second limb of the test the context of the comment becomes important. This means that all of the surrounding circumstances including the physical proximity of A and B and the manner in which the comment was made, as well as the wider relationship between A and B and whether this was a one-off incident, will have a bearing on whether or not B can demonstrate that the behaviour amounted to harassment. Merely complimenting a colleague on their perfume in passing could not, by itself, be reasonably viewed as sexual harassment.
The extent of background information which becomes relevant to an allegation of sexual harassment means that dealing with an allegation, both as part of an internal investigation and any employment tribunal proceedings, can be a timeconsuming process. Where harassment claims arise, it is often because an initial, seemingly benign, incident has been followed by an escalation of harassment. Whilst the initial incident is unlikely, by itself to amount to harassment, when viewed in the context of wider allegations it can appear very different. For this reason, it is important that employers have systems in place which allow concerns to be raised at an early stage. This allows any unwanted behaviour to be challenged and addressed before it develops into a more serious sequence of behaviour amounting to harassment.
Agenda is a column for outside contributors.
Contact: agenda@theherald.co.uk