Tarana Burke is a civil rights campaigner who started the #MeToo movement to raise awareness of the prevalence of sexual harassment. In some ways, the start of #MeToo across social media in 2017 changed everything. Sexual harassment is no longer deemed something that you should tolerate or shrug off, but something that you can and should talk about.
In other respects, very little has changed and sexual harassment remains widespread. Not least in the workplace: in 2017 ComRes conducted some research for the BBC found that 40 per cent of women and 18 per cent of men (29 per cent overall) had experienced some form of unwanted sexual behaviour in the workplace.
What is sexual harassment?
Sexual harassment has a broad definition. In law, any type of unwanted behaviour of a sexual nature (or related to your gender) that makes you feel intimidated, humiliated or degraded or creates an offensive or hostile environment is considered sexual harassment. The type of treatment can range from displays of pornographic material, unwelcome jokes or comments of a sexual nature to serious sexual assault.
What to do?
Your response will be guided by what exactly has happened. If you have been sexually assaulted then your first step may be to go to the police and seek professional or emotional support outside of your employer.
In less serious cases, your first step may be to raise the incident directly with a senior member of management or HR. Most employers will have an Equality and Diversity Policy which will offer you some direction on your next steps. This document will you offer the reassurance that your employer takes acts of discrimination very seriously and its zero tolerance to harassment. Laudable statements but – in our experience – often empty.
This is because, as we see in public life and in criminal matters, the victim has to prove the harassment occurred in the face of a culture where it is okay to lie and deny. The unwelcome sexual joke was just workplace banter and the sexual advance was misconstrued “the FD is and always has been respectful of women – he even promoted a woman in the past….”
In terms of formal action, the tribunal system has very strict time limits and any tribunal claim has to be initiated within three months of the harassment. Tribunals expect you, in most cases, to have followed some form of formal process – e.g. instituting a grievance and allowing the employer to investigate.
The steps you take following sexual harassment in the workplace will be personal to you. You do have clear options and it isn’t all bleak.
First, you must decide what you want. Can you work with the perpetrator again? Could they or you be moved elsewhere in the business? Would an apology suffice? Do you want to leave? Do you want to bring formal proceedings in the Tribunal and hold the individual(s)/Company to account?
Our Clients often come to us because they have decided they would prefer to leave employment and negotiate an exit. We explore this further below. We also support clients through the tribunal processes and for some this may be the only way as the employer will not engage in settlement or because they have concluded that the employer should answer the allegations publicly.
Everyone’s response is different and each is legitimate.
How to negotiate an exit package
The atmosphere at work may have become unbearable and your health is suffering. It may be simply a case of wanting to put traumatic events behind you and moving on. Whilst you may want to fight, you know your employer will never accept liability and you do not have the appetite, or deep pockets, for long and drawn-out court proceedings.
If this is the case, you might want to negotiate yourself an exit package or settlement deal.
Negotiating an exit package following allegations of sexual harassment is often very delicate and you may be best placed to seek specialist advice before embarking on the negotiation process. We set out below some advice on general principles.
In some cases your negotiation will start because it has become clear that your employer is not prepared to take sufficient action to deal with the complaint. In others it can be a possible tactic to open up a conversation on a without prejudice basis before making a formal complaint.
Templates and guides are available for free on our website. We have provided you with direct access to some related guides at the end of this article.
In these communications you should focus on the positives – your achievements and the skills you may have developed and the mutual desire to find a means of reaching resolution. Whilst there is likely to be a need to discuss the harassment itself it is often best not to go into details, particularly if this is likely to focus attention on differences of opinion.
You should then outline what you are looking for – payment of your contractual payments as well as benefits in addition to compensation.
If there is to be an agreement, you will be asked to sign a settlement agreement that will often contain an NDA or confidentiality clause. You may have some strong feelings about this. It is likely to be open to you to agree an NDA and still be able to refer the matter to a regulator or law enforcement agency, but generally the employer will want to prevent you from discussing the circumstances leading to the termination of your employment and the terms of the settlement agreement are confidential. We would always expect this to also bind the employer and the perpetrator.