Online harassment on the increase

By Caroline Doran Millett, Partner in the Employment Law team at Royds Withy King 

Female bank and financial services employees are facing unacceptable levels of daily sexual harassment in online meetings and in online messaging services, says employment lawyer Caroline Doran Millett. 

The increase in remote and hybrid working has seen a corresponding increase in female staff receiving sexist comments about their appearance on online meetings. Comments have included references to wearing more make-up or wearing more revealing clothing, and increased concerns about sexist and offensive jokes being circulated in team message groups. 

In more extreme cases, there have been examples of female staff having joined Zoom and Team meetings to find a male colleague in the bath, colleagues exposing themselves, whether inadvertently or otherwise, and even involved in explicit sexual acts.

It appears, however, that staff are reluctant to rock the boat because of lack of job security, not knowing who to complain to or not believing that anything will be done. Yet the duty of employers have to provide a safe working environment and dignity at work has not been suspended during the Pandemic.

The fundamental legal duties on employers and managers to create a safe and harassment free working environment remain in full force regardless of whether staff work at home or the office. Harassment can be deliberate or inadvertent. The test is whether it either had the purpose or the effect of violating their dignity. As such, the perception of the victim is important, although there is a reasonable sanity test. A one-off sexist joke or inappropriate sexual innuendo is sufficient for the employer and the harasser personally to be sued for discrimination.

As a rule, employers are liable for discriminatory acts of employees unless they can show that they have taken “all reasonable steps” to prevent those acts from taking place. 

How the pandemic has changed harassment

Working from home during the pandemic and the advent of hybrid working has not stopped workplace harassment but it has changed how people are interacting with their colleagues.

We have seen an increase in allegations of online harassment and inappropriate virtual conduct. 

There have been high profile examples including Jeffrey Toobin, a senior legal analyst for CNN and contributor to New Yorker, dismissed by the New Yorker (although not by CNN) for exposing himself on Zoom to colleagues. Nick Emery, CEO and founder of global media company GroupM, part of the WPP family, was fired after he allegedly took his webcam into the toilet and exposed his bottom “as a prank” while on a conference call with his colleagues.  

The charity Rights of Women in a January 2021 published a survey reporting that sexual harassment has increased during Lockdown. It found that 23% of women who had previously experienced sexual harassment reported an increase or escalation whilst working from home since the start of lockdown. 45% of women experiencing sexual harassment reported experiencing the harassment remotely. 

It appears that some staff may not even now understand that they need to modify their workplace conduct to the current accepted norms. Unfortunately, even good organisations can have a bad apple which taints the working environment for a number of other staff.  

Many of the complaints we are dealing with are where one party considered there was a convivial friendship but misjudged the boundaries or relationship through misplaced humour and personal comments. Naïve or ill-judged sexist or sexualised comments can still be harassment. The so-called ‘banter’ defence is often used but rarely works; as even if the victim engages in banter it is up to each person to draw the line where they feel comfortable and with whom.

Financial Conduct Authority regulation

In 2020, the Financial Conduct Authority (FCA) confirmed, if there was any doubt, that it considered “sexual harassment as misconduct which falls within the scope of our regulatory framework”. 

In its 6 January 2020 letter to the insurance sector, the FCA emphasised its expectation that business leaders should be pro-active in tackling non-financial misconduct. It stated “How a firm handles non-financial misconduct throughout the organisation, including discrimination, harassment, victimisation and bullying, is indicative of a firm’s culture. … non-financial misconduct … will be a key focus for our supervision of firms and of senior managers”. 

The UK’s financial services regulators’ latest attempt to encourage faster change for Diversity and Inclusion (D&I) in the financial industry may prove to have teeth if ties firms’ D&I successes, and failures, with bonuses. 

The FCA, Prudential Regulation Authority, and the Bank of England are showing determination to tackle the notable lack of diversity and inclusion in regulated firms. Such a drive by the regulators will bring into ever greater scrutiny how regulated employers prevent harassment and deal robustly with such allegations amongst their staff. 

Although larger regulated firms have already agreed to targets on promoting women at senior levels, the proposed goals would address more underrepresented groups as well as smaller companies and more junior roles. All measures should help with the work culture and environment. 

The regulators’ discussion paper closed on 30 September 2021 and the data received will be used to develop what are expected to be far-reaching proposals. A joint consultation on the proposals is planned for Q1 of 2022. These proposals include measures which should bring workplace harassment into sharp focus, including: 

• Accountability – making those with senior management function directly accountable for Diversity and Inclusion (D&I) including developing the firm’s culture. 
• D&I Policies – a potential requirement for all firms to publish their D&I policies on their website.
• Remuneration – linking variable remuneration with progress on D&I.

A higher standard for all employers 

Based on its recent consultation and when parliamentary time allows, the UK government intends to introduce several measures aiming to address the ongoing issue of workplace sexual harassment. These include:

1. A statutory liability on employers in the event that they fail to protect their staff from sexual harassment, in the hope that this will encourage employers to take positive proactive steps to make their workplace safer
2. An explicit protection from harassment by third parties (customers or clients)
3. Extension of the time limit to make a tribunal claim (for all Equality Act based claims) from three to six months 

There are many ways to improve the culture and reduce the risk of harassment. The first steps should include:

• Identify the areas of potential risk which need to be addressed as a priority (all networking or client entertainment pass the “Front Page” test, informal or historic grievances or issues of concern to HR etc)
• Update and circulate the ED&I policies – everyone has to understand their duties to their colleagues
• Meaningful training – with annual refreshers – everyone has to understand the professional, personal financial and regulatory implications if they harass a colleague
• The tone is set from the top. The message has to come from and be endorsed by the leadership for it to be taken seriously.  

The regulators and the government appear now to recognise that the status quo is not good enough. The financial and reputational consequences are growing ever more serious for firms which do not take active steps to try to prevent harassment. It is imperative for regulated businesses to make it a priority to create a safe -and harassment free- working environment in 2022.