Harassment

Monday 6th November 2017

Sir Michael Fallon has resigned from his cabinet post as Defence Secretary following “kneegate”.

He has admitted to repeatedly touching female journalist Julia Hartley-Brewer’s knee at a Conservative Party conference dinner 15 years ago. Whilst additional allegations are starting to be revealed and it is unclear whether there are any other reasons for the resignation, it is worth considering the present point in the context of employment law.

This article will consider whether such an allegation, if hypothetically Sir Michael and Julia were colleagues at work, would meet the Equality Act 2010 definition of “sexual harassment” and, if so, whether a successful claim could now be issued by Julia.

The law of harassment at work under the Equality Act 2010 is summarised below.

Employers have a duty not to harass employees where it relates to one or more protected characteristics (age, disability, gender reassignment, race, religion or belief, sex and sexual orientation).

  • The conduct must violate the harassed person’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment.
  • The conduct must be unwanted. It will be unwanted if the harassed person made it clear it was unwanted or because the risk that it would offend was obvious.
  • There is a specific provision in the Equality Act that refers to harassment of a sexual nature. It is also unlawful to treat a person less favourably because they have either rejected or submitted to sexual harassment.

It is important to note that an individual “harasser” can be liable and that the employer will be vicariously liable if the act was carried out in the course of employment – unless the employer has taken all reasonable steps to prevent harassment/discrimination occurring, which can be difficult to prove. It doesn’t matter whether or not an employer knows or approves of the employee’s actions.

Let’s consider the present allegation within a hypothetical employment scenario. If, for example, Sir Michael and Julia were attending a work Christmas party in 2002 and Sir Michael repeatedly touched Julia’s knee at this event, this is how the law is likely to apply:

  • The conduct is likely to have been distressing and to have created an intimidating, hostile, degrading, humiliating or offensive environment for Julia.
  • The conduct is likely to be unwanted. In the media reported case, Julia did threaten to punch Sir Michael at the time if he didn’t stop touching her knee and so she made this very clear. Plus, it would be obvious to any reasonable person that such an act would offend.
  • The conduct is likely to be regarded as being of a sexual nature given it involves touching / feeling and would generally be regarded as inappropriate flirting or, as Julia herself has put it in a statement she released on twitter, misjudged sexual overtures.
  • The conduct occurred, in our hypothetical scenario, in the course of employment as it was at an event arranged by and for the purposes of the employer.

So, it is likely that this act will be regarded as an act of sexual harassment under the relevant employment legislation and that both Sir Michael and the hypothetical employer would be liable.

The next question, whether a successful claim could now be issued, is largely a question of timing.

The incident occurred 15 years ago. If a claim is made many years after the incident it will be out of time. This is because claimants have to commence proceedings, which means they have to commence the mandatory ACAS early conciliation process, within three months of the incident complained of (or within three months of the last act if there have been a series of incidents). A claimant then has to issue an ET1 Claim Form to the Employment Tribunal within a month of the end of the ACAS early conciliation process.

This claim would therefore be considerably out of time and it would be for a Tribunal to consider whether it would be “just and equitable” to extend the deadline. The Tribunal’s discretion is very wide in this regard, but any extension is really the exception rather than the rule. A tribunal will consider a multi-faceted test before a late claim is allowed in.

It is probable that such a claim would be deemed “out of time” and no extension would be granted due to the considerable delay from the incident itself. So whilst Julia would have a claim on the face of it, in an employment context it is likely that she would be left with no remedy due to the jurisdictional time limit rules.

It is worth emphasising that this is a hypothetical scenario and it does appear that Julia herself would never contemplate issuing a claim. She has described Sir Michael’s resignation as “insane, absurd and ridiculous” and she has gone on record stating that she has “no problem” with him. We shall see whether other allegations will surface and, if so, whether this question of timing is relevant.

Whilst inappropriate behaviour cannot be condoned, the rules requiring timely complaint are there for a reason, as the cogency of any evidence may well be affected by the length of the delay. If nothing else the current furore around sexually inappropriate behaviour has highlighted the distinct difference between the political arena and the legal position.

Should you or your business need any guidance on this or any other aspect of employment law, further information on Gordons’ employment law solicitors can be found online at http://www.gordonsllp.com/.