Not just banter – sexual harassment in the workplace in Scotland

Not just banter - Image credit: Holyrood

‘I am new, kiss me!’ said the company badge worn by a Pret a Manger employee in London, which was spotted by a journalist and posted on Twitter.

A number of people took to social media to express their disgust.

Labour MP Harriet Harman tweeted: “Oh no! This cannot be for real! If it is, @Pret, stop it immediately! I love Pret but hate this!”, while Green peer Jenny Jones commented: “Oh yuck @Pret that’s terrible. It’s an invite to gropers.”

While it wasn’t official policy to issue badges with such messages – a Pret spokesperson told the Evening Standard that employees had been allowed to personalise them – it suggests a worrying naivety about sexual harassment by the company.

It illustrates vividly that while the allegations about film mogul Harvey Weinstein have opened the floodgates to other high-profile claims of sexual abuse and harassment, particularly in the political and showbiz worlds, behind those headline-grabbing cases, everyday harassment and inappropriate behaviour still exists in workplaces across the country.

A 2016 TUC report on sexual harassment in the workplace, Still just a bit of banter?, found that 52 per cent of women would say they have experienced some sexual harassment in the workplace, with the number going up to two-thirds among 18-24 year olds.

Thirty-two per cent had been subjected to jokes of a sexual nature, while 28 per cent had had comments made about their body or clothes.

Nearly a quarter had experienced unwanted physical contact, such as on the knee or lower back, while a fifth had had unwanted sexual advances and one in 10 had had unwanted sexual touching or attempts to kiss them.

In the majority of cases, the perpetrator was a male colleague, with one in five reporting that it was their manager or a senior colleague with authority over them. Four out of five women had not reported the harassment.

According to Sarah Collins, policy officer for the STUC, the problem affects everybody, from bar staff and musicians to nurses, teachers and politicians, “everybody from low paid work right up through the professions through the glass ceiling”.

In terms of how to deal with it, though, is the line clear between behaviour that is simply annoying or that warrants workplace disciplinary procedures or police action?

Collins says that she doesn’t think it is. However, she adds: “To be honest, I’m kind of loath to be drawn on if something’s just annoying behaviour.

“I think if you’ve got two-thirds of young women saying quite clearly that they’ve been sexually harassed, then that’s a massive, massive societal problem that we’ve got to take heed of, because that figure will hide the amount of people who do experience conduct which they class as simply annoying that they wouldn’t class as sexual harassment.”

Collins suggests that the scale of the problem “remains hidden in staff rooms” because of the power imbalance, that women are fearful of losing their jobs or simply that they don’t think of what they have experienced as harassment because it’s the culture of the workplace.

This is particularly an issue in the hospitality industry.

She says: “They feel like this is just par for the course, particularly in some working environments.

“We’ve got so many examples of bar staff, in particular, who when the Hollywood scandal came out, then came forward and said, ‘Yeah, I’ve definitely been sexually harassed and assaulted, but I never really realised that’s what it was at the time because it’s part of the culture of working in hospitality, working with drunk customers who try and touch you or make inappropriate comments’.”

Collins tells of one case, where a young woman employee in a Glasgow bar had a male customer lunge at her because she had declined to have a drink with him.

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She told the manager about it and he’d told her to ‘calm down,’ because the man was just drunk.

“And the guy had been waiting outside for her, had tried to fight her outside, but it had been very gendered, abusive language that he was using as well. The manager didn’t see that as a problem,” said Collins.

In another case, mentioned by the union Unite, which has launched a campaign to tackle harassment in the hospitality industry, a female employee in a bar was delivering a bottle to a booth of men, when one of the men pulled up her dress and grabbed her bum.

When she complained to her manager, he gave her £50 to keep quiet because the men were spending a lot of money that night.

But it’s not just the hospitality industry.

Jennifer Dalziel, a solicitor with JustRight Scotland and the project solicitor for the Scottish Women’s Rights Centre – a collaboration between JustRight Scotland, Rape Crisis Scotland and Strathclyde University Law Clinic which runs helplines and surgeries on legal issues facing women – says that she has noticed an increase in the number of enquiries about sexual harassment in the two years since their helplines began in 2015.

She suspects this is due to women’s increasing awareness of their rights rather than that it’s happening more.

“Not to say that that gives them an easy route forward, but that they are more aware that it shouldn’t be happening,” she says.

There are options available to all employees facing harassment, from workplace procedures to employment tribunals and involving the police, but each has its own challenges.

Dalziel suggests that “the first [thing] they’ve always got to be aware of around sexual harassment is there’s a three-month time bar in terms of any route through the employment tribunal, so it’s very, very tight timescales for women who find themselves in that situation.”

Anyone considering an employment tribunal has to engage with internal procedures and employment advisers ACAS first, so Dalziel suggests that someone thinking about taking things forward puts it in writing as far as they can, thinks about the safest way of reporting it and going through workplace procedures, and takes legal advice if there’s no satisfactory resolution.

“The main priority for me advising women is that they keep themselves safe,” says Dalziel, “so if it isn’t going to be safe for them to make a report to the organisation they work for because it is, for example, the person who is carrying out the harassment is the only person, then really, I think that they would need to put something in writing and then go and take specific legal advice about what their options are from there.”

However, Dalziel says that even when the issue is taken up by the employer, it can still be a challenge for the woman.

They may have to continue to work with the alleged perpetrator during an investigation or afterwards if not enough evidence is found to take the case forward.

In that situation, a woman will have to decide whether to engage ACAS and then go down the employment tribunal route or simply leave it there and consider whether they can continue to work in that environment.

Leaving as a result of the behaviour is risky, particularly in the current economic climate, but staying may mean a continuation of the behaviour.

While a woman might be able to claim constructive dismissal if she leaves as a result of that, if it is unsuccessful, “then you’re left without a job and without any monetary compensation.”

Taking up a criminal case can be even more of a challenge, with Scots law requiring corroboration.

Dalziel would like to see a tightening up of procedures so that it is not left to the individual employer to decide what is reasonable.

“I think a clarification of procedures would be helpful at least, then when providing advice to women we’d be able to say, ‘Well, this is exactly what your employer has to do, this is the timescale that they have to do it in and if they fail in any of this, then this is your route’.

“And I think it would be helpful to have something to provide some protection to the woman in the meantime while that investigation is being carried out, and indeed, if they were to go down the employment tribunal route, to take the decision to remain in the workplace in the meantime, a requirement for certain steps to be taken in the meantime to allow them to do that.”

The STUC is currently training its reps to be better at identifying sexual harassment in the workplace, and making sure they know what to do about it.

And as part of the STUC’s ‘Better than Zero’ campaign, its youth committee is keen to implement a workplace charter on sexual harassment as a tool to be used in workplaces and to talk to young workers about these issues.

But while allegations relating to misdemeanours in political workplaces such as Holyrood, Westminster and local authorities have been covered in the press, how to deal with the issue there is more of a challenge.

The Scottish Parliament has launched an investigation into how prevalent the problem is, with a questionnaire being circulated this week to everyone who works in the parliament building.

Meanwhile, Holyrood’s Standards Committee has launched an inquiry into MSPs’ codes of conduct, political parties’ investigation of complaints against MSPs and workplace and societal factors that might contribute to their conduct.

COSLA, too, is looking at the issue of sexual harassment in local government as part of wider work on equalities.

However, there are specific challenges in the political workplace in terms of dealing with complaints. MSPs employee their own staff, so effectively, they are small businesses and any complaints would have to go to the MSP that employs them or to the political party – although the parliament has launched a confidential advice service.

Meanwhile councillors are not employed by councils and are therefore not subject to the councils’ own procedures as officers are. Any complaints about councillors have to be made to the political party or to the Commissioner for Ethical Standards in Public Life in Scotland – a body Fife Conservative councillor Linda Holt describes as “toothless”.

Holyrood asked all councils in Scotland for their procedures on sexual harassment and whether they covered elected members.

Most referred to their bullying and behaviour policies and stated they had robust procedures in place, but several said that complaints had to be made to the Standards Commission – actually incorrect, as they have to be made to the Commissioner for Ethical Standards, who may then ask the Standards Commission to follow up.

We also spoke to the political parties. The SNP forwarded a copy of a letter from Nicola Sturgeon that had been sent to parliamentarians, their staff and other staff in the parliament.

This explained that in addition to internal reporting procedures, she had set up a helpline with a solicitor so that people could make complaints or seek advice from a third party.

Labour procedure, which was agreed at the NEC in July, includes any complaints being dealt with by a specially selected sexual harassment panel of the NEC, with both the complainant and the responder’s details anonymised and separate interviews undertaken to avoid face to face encounters.

In addition, Richard Leonard, the new Scottish Labour leader, has committed to setting up a separate reporting mechanism that is independent of the party.

The Greens said they would “treat such behaviour extremely seriously” and that “all branches are now required to have a welfare and conduct officer and our complaints procedure has been reviewed and updated”.

There was no information provided by the Conservatives or the Lib Dems.

Clearly, the solution must involve widespread cultural change.

Collins calls for a “victim-centred approach, which means that the woman is believed straight away” and she suggest this should start with not just tackling clear-cut cases of harassment and abuse, but so-called ‘banter’ and a culture where men act like women are disposable and so women don’t feel empowered enough to stand up and say something is wrong without fear of losing their job, their colleagues’ respect or not being believed.

Collins says: “I think, from our perspective, the message has to be that women aren’t there to be used and abused and it’s that kind of cultural shift that has to take place at the same time as actually educating people about what sexual harassment means and what sexual assault means, what sexual abuse means, what sexism is generally, why it’s wrong in the first place, and what people can actually do about it.”

Collins doesn’t think there needs to be a change in legislation, so much as a change in attitude, suggesting that “sometimes if you introduce new legislation, it’s seen as a sort of plaster over the problem that it’s going to fix everything”.

And both Collins and Dalziel are clear that one of the main changes is for the default to be that women are believed.

Dalziel says:  “Not just around sexual harassment in the workplace, but around all sexual crimes and domestic abuse there is… a society-wide tendency to not work on the presumption that a woman is telling the truth… I’m not sure a change in the law is going to achieve a societal change on that, but [rather] public education of some sort around how often do women make things like this up. Very, very, very rarely.”