The scandal over the rampant sexual harassment at the men-only Presidents Club charity dinner has thrown up questions about whether staff are being bamboozled into doing nothing about bad behaviour they endure.
Lawyers told HuffPost UK that a non-disclosure order women at the event were reportedly made to sign, without reading or being allowed to keep a copy, amounted to “an act of intimidation” and a “form of power against women who are vulnerable”.
Maria Miller, who chairs the Womens and Equalities Committee, said she use of NDAs has become “incredibly prevalent in many employment situations in a way they were never designed to, with very few rules in place”.
Below, Katie Mahoney, an employment lawyer at Doyle Clayton, sets out what amounts to sexual harassment in law and what people in situations like the Presidents Club hostesses can do about it, even if they have signed some form of NDA and their employment is precarious.
1. What does the law on sexual harassment specifically prohibit?
Sexual harassment is a form of unlawful discrimination under the Equality Act 2010. Under legislation, sexual harassment occurs if behaviour is either meant to, or has the effect of, violating dignity or creating an intimidating, hostile, degrading or humiliating or offensive environment for the individual concerned.
Interestingly, in 2013 part of the Equality Act was repealed.
Section 40 made an employer liable for an employee being harassed by a third party, such as a customer, if they did not take reasonable steps to
prevent it. There have been petitions started over the last few weeks saying that this protection for employees should be brought back.
2. What can people do if they feel they’ve suffered sexual harassment but don’t want to go to the police?
I cannot comment on the criminal aspects. With incidents that take place at work, they would have protection under the Equality Act. The Equality Act sets out a clear framework. Broadly speaking, sexual harassment can include touching, groping, as well as sexual jokes on email, hugging and staring in a sexually suggestive way.
Under the Equality Act, the onus is on the employee to raise the issue and
highlight was has happened to their employer. If they do not get the outcome they want, they would then be able to take the case to the employment tribunal.
The awards that the employment tribunal can award are not capped in value. Before a claim can be brought, the employee would have to go through a process called “early conciliation”, which is operated by ACAS and must be started within 3 months of the alleged act being complained of. The deadline is strict.
Early conciliation usually lasts for a month, although it can be extended by agreement for an additional two weeks. If the matter is not resolved, the employee can then proceed to submit a claim although there are strict time limits for doing so. Employees can go through this process themselves or with the assistance of a lawyer.
3. Does employment status (employed/self-employed/agency staff) affect your rights?
Yes. The Equality Act protects you against discrimination at work. This includes if you’re:
a job applicant
an employee - if you’re employed under a contract of employment;
an agency worker - if you’re supplied by an employment agency to do work for
another employer or end user;
a casual worker
a zero hours worker
a trainee
an apprentice
in some situations, if you’re self-employed.
The Equality Act also sometimes protects you after you’ve left your job.
Individuals do not have to be employed under a contract of employment to be protected against discrimination under the Equality Act. What is crucial, however, is that they are employed under a contract personally to do work.
Much can depend on the contractual nature of the relationship. If, for example, the individual is in business on their own account and they contract with an employer to provide services (and there is no obligation on them to provide those services personally), this would be a commercial contract and would not be a contract to personally do work.
4. What does signing an NDA mean for your right to bring a harassment claim?
It depends what the NDA says. However, it is not possible for such an agreement to prevent an employee bringing statutory claims such as unfair dismissal and sex discrimination, as it is only possible to do this by signing a statutory settlement agreement.
For such an agreement to be valid, it is necessary for the individual to take
independent legal advice on the terms before signing it. So, even if there was a signed non-disclosure agreement, it is unlikely to be successful in preventing individuals from pursuing their statutory claims.
5. If you suffer sexual harassment where your employment status is ambiguous and you’ve signed something you weren’t allowed to read, what should you do if you want to pursue a claim?
Take legal advice so you don’t miss the deadline to commence early conciliation (as set out above, the deadline to commence early conciliation is within three months of the act complained of). Advice is available at the Citizens’ Advice Bureaux and law centres, as well as from specialist employment lawyers.