By Kelly Brown, associate at international law firm Addleshaw Goddard.
THE #MeToo movement is an important contributing factor in the creation of working environments that are open, honest and direct in discussing and tackling sexual harassment. It has exposed the scale of the problem, and has given a voice to those who previously may have felt they couldn’t speak up.
And yet many cases of harassment still go unreported for a number of reasons, including a belief that the alleged perpetrator would be protected, as well as a lack of formal procedure.
Reporting (and recording) is at the heart of the issue. So-called “gagging clauses” have exacerbated the problem. Used appropriately, they do have their place, and exist because sometimes it suits all parties to draw a line under a dispute and move on. In some instances, however, gagging clauses have been used oppressively and in a few cases, where it would have benefited the public interest for harassers to have been exposed, broadly worded clauses have made it possible for harassment to continue for years.
A report published by the Equality and Human Rights Commission in March proposes that legislation should be introduced to make such clauses void. It also recommends steps to address harassment in the workplace, by focusing on workplace culture, promoting transparency and strengthening legal protections.
Statutory restrictions do exist already, such as making it unlawful to prevent an employee from whistleblowing. But the legislation is complex, and it is not always obvious if an employee raising a complaint would be protected. Someone who has suffered harassment at work, and has been required to sign up to a gagging clause as part of the resolution of their complaint, potentially faces being sued if they then speak up.
Gagging clauses will usually be drawn up by solicitors, and steps have been taken by regulatory bodies to ensure that they are not drafted in terms that would be inappropriate. So, for example, it may be regarded as professional misconduct if a solicitor doesn’t make it clear in the terms that the employee’s rights under whistleblowing legislation, and in reporting criminal conduct, remain unaffected.
For the most part, the #MeToo movement has focused on sexual misconduct against women, principally because harassment is most frequently perpetrated against women. The #MeToo movement has had an impact on men as well, however. In a recent survey, 50 per cent of male managers reported that they felt uncomfortable participating in common work activities with female employees, such as mentoring or even socialising.
The #MeToo movement has been a force for positive change. It is a good thing that people are evaluating their behaviour towards colleagues, but the last thing the modern workplace needs is further polarisation. It is the opposite of what the movement sought to achieve, and we should be mindful that at the heart of #MeToo is equality.
There remain fundamental issues that must to be addressed if sexual misconduct in the workplace is to become a thing of the past. Workplace culture is central to that, with all staff recognising what constitutes unacceptable behaviour and all staff, from the top down, being willing and able to speak out, without fear of repercussions. Employers must ensure comprehensive policies are in place, train staff in their use and application, and take effective action against perpetrators. Turning a blind eye is no longer an option. Nor is protecting the perpetrators, often at the expense of their victims.
Employers and staff shouldn’t be afraid of the #MeToo movement, but rather see it as an opportunity to break down hierarchies and gender imbalances.
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