Upskirting Not Banned

June saw a petition to make upskirting – taking a photo up a woman’s skirt without her consent – illegal. The bill was blocked by Sir Christopher Chope, a backbench MP who makes a habit of filibustering any bill that has not been debated.

Chope, who filibustered bills to pardon Alan Turing, prevent carers being subjected to hospital parking charges and prevent revenge evictions, believes the bill needs further scrutiny. Usually, PJH Law is in favour of avoiding jargonistic, overcomplicated legislation but it is hard to see any reason why such an issue could be over-complicated.

Since the allegations against Harvey Weinstein and other Hollywood powerbrokers last year, the #MeToo campaign has brought increased awareness to sexual harassment issues. Whilst the defeat of the upskirting bill is a setback, it is a debate that probably wouldn’t have been considered 12 months ago but for heightened awareness.

Whilst upskirting is not a criminal offence, it would leave employers liable to a sexual harassment claim if an employee was subjected to such conduct. Given the heightened interest in the issue, we thought it appropriate to do a feature on sexual harassment at work.

Harassment can relate to any of the protected characteristics, but sexual harassment is defined in Section 26 Equality Act 2010 as unwanted conduct of a sexual nature that violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.

The conduct can vary in levels of severity ranging from everyday examples such as lewd comments, jokes and swiping generalisations, to sending unsolicited graphic images and right up to extreme conduct such as pressuring a colleague to go to your house/on a social date for fear of losing their job, propositioning an employee as a prostitute/escort or sexually assaulting a colleague.

Whilst the conduct is predominantly aimed at women, it can also be against men. For example, the actor Terry Crews, who has been a part of the #MeToo campaign, alleged that a producer groped his penis during a film promotion.

The overwhelming theme of sexual harassment complaints is that the harasser usually has some degree of power or authority over the victim. This could be a direct supervisor, an indirect senior employee or even an equal-ranking colleague who is older or more physically imposing than the victim. The more serious incidents tend to occur when staff are left one-on-one or when the harasser gets hold of the victim’s personal contact information.

Employers are vicariously liable for harassment, but this isn’t just harassment committed by employees. An employee could be harassed by a customer, an external consultant or contractor. Furthermore, the case of Vernon v Azure & Port Vale FC held that harassment can TUPE transfer over from one employer to another. In that case the victim TUPEd over but the harasser did not. However, as they still worked in close proximity, the employer was still liable.

The #MeToo movement has opened the door to a whole host of harassment issues but many everyday harassment issues still persist. The reason for this is that many employers do not know of the harassment that is going on because it has not been reported or witnessed.

Currently, many harassed employees do not come forward because the harassment is often done by someone more senior to them and they fear detrimental treatment if the conduct is reported. That, together with the perceived stigma of other people finding out about the harassment is often threatened by the harasser to ensure silence.

Victims being comfortable to come forward knowing issues will be dealt with objectively and confidentially is the key to tackling workplace harassment. Reviewing policies, training staff and warning staff of the consequences of harassment are all well and good but harassment is a wide-reaching cultural issue that will require cultural change both in and out of the workplace to fully address.