Sexual harassment at work and settlement agreements

This article is part of a new series discussing how to navigate difficult situations at work, from a legal perspective. This week’s post by Alex Monaco discusses sexual harassment and in particular how to handle settlement agreements, while avoiding the pitfalls of staying silent and lonely.

By Monaco Solicitors

The #MeToo movement, started by civil rights campaigner Tarana Burke, is to raise awareness of the prevalence of sexual harassment. In some ways, everything changed after the start of the #MeToo across social media in 2017.

Sexual harassment is no longer considered something that you should shrug off and tolerate, but something that you can and should be talking about. On the other hand, very little has changed and sexual harassment remains widespread.

Not least in the workplace: ComRes conducted some research for the BBC in 2017 which found that 40% of women and 18% of men (29% overall) had experienced some form of unwanted sexual behaviour at work. 

What is sexual harassment?

In Law, sexual harassment includes any unwanted behaviour of a sexual nature (or related to your gender) that makes you feel degraded, humiliated, intimidated or creates an offensive or hostile environment.

This type of treatment ranges from unwelcome jokes or comments of a sexual nature, displays of pornographic material to sexual assault. 

What to do if you’ve been sexually harassed?

What exactly has happened will guide your response. 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. 

Your first step in less serious cases may be to raise the incident with HR or a senior member of management.

Some direction as to your next steps will usually be offered by employers in their Equality and Diversity Policy. This policy will offer you the reassurance that acts of discrimination are taken seriously by your employer and that they have zero tolerance to harassment.

Laudable statements but – in our experience – often empty.

This is because, as we see in criminal matters and in public life, the victim has to prove the harassment occurred in the face of a culture where it is ok to deny and lie. The unwanted sexual advance was misconstrued “the FD is and always has been respectful of women – he even promoted a woman in the past…” and that the sexual joke was just workplace banter. 

In the UK, the tribunal system has very strict time limits and a tribunal claim has to be initiated within three months of the harassment. In most cases, tribunals expect you to have followed some form of formal process – e.g. allowing the employer to investigate and instituting a grievance.

Options open to you following sexual harassment

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

Your health may be suffering and the atmosphere at work may have become unbearable. It may be simply a case of wanting to put the 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 deep pockets, or appetite, 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 usually very delicate and it may be best 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 as it becomes 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.

A without prejudice conversation can take a variety of forms:

• Letter
• Phone call
• Face to Face conversation

• 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 a 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.

Note from EVE List: Companies that want to thrive understand that building an inclusive culture is a long journey and it starts with creating safe environments for all of the workforce.

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