The #MeToo movement has on the face of it changed the landscape for the better. But what about the reverse situation where the accused (usually men) are falsely accused?
Reverse #MeToo claims have already been made. This is unsurprising, as alleged perpetrators often seem to be treated in the same way as if they had been shown to be actual perpetrators. More importantly for businesses, such action may amount to sexual discrimination against the (usually) male employee.
Allegations of sexual harassment (most recently concerning Sir Philip Green) are nothing new so far as the fashion industry is concerned. American Apparel, Abercrombie, and top fashion photographers such as Terry Richardson and Mario Testino have all been the subject of allegations in recent years.
But failure to deal properly with the accused can result in reverse #MeToo claims where the accused (men) feel that they have been scapegoated. Dismissals can be a knee jerk reaction as a result of the #MeToo movement and the perceived need for fashion businesses to signal virtue. Indeed, we have seen a number of businesses rush to dismiss male employees for alleged gross misconduct when the conduct may not be sufficiently serious to justify gross misconduct, or may not be proven at all!
Reverse #MeToo claims do not represent a diminution in the importance of the #MeToo movement. Prior to #MeToo, many victims felt unable to raise concerns for fear of placing their careers at risk and not being believed, particularly if their allegations were against powerful male perpetrators within the industry. Any victims who raised historical allegations of sexual harassment have typically been paid off and gagged under non-disclosure agreements, a standard approach in all industries. But it is an approach that results in the situation being poorly managed, with perpetrators remaining employed and allegations being swept under the carpet. Indeed, Guess, Nike and Feminist Apparel have been criticised for the way in which they have treated their female employees.
But serious reputational damage can result for any individual, perhaps the more so for high profile individuals, caught up in an often febrile atmosphere of allegation and counter-allegation, claim and counterclaim, the he said/she said that often results.
Guilty until proven innocent, with no desire to seek out the truth, is often the default option, and mishandled investigations are rife. Families and individuals can be permanently damaged. The sad recent case of Carl Sargeant is but one example.
A balance needs to be struck between publicly naming and shaming perpetrators and carrying out a fair and impartial investigation before conclusions are reached and reputations are damaged irreversibly.
What does the law say and what action should you take?
Sexual harassment is unwanted conduct of a sexual nature that has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. It can be a single act of harassment or a series of acts.
If employers receive an allegation of sexual harassment, a robust and fair investigation must be carried out without delay. The outcome should be objectively justified and supported by evidence.
Who is liable?
Employers are vicariously liable for anything done by its employees in the course of their employment, unless they took all reasonable steps to prevent the harassment.
Employees can be personally liable so a perpetrator or decision maker (HR manager, director, or in-house lawyer) could be joined in as a separate party to any Employment Tribunal claim and be jointly liable with their employer for any compensation.
Employees who bring a successful Employment Tribunal claim could be awarded between £900 to £42,900 for injury to feelings depending on the severity of the harassment, and compensation for future loss of earnings which is unlimited.
These types of claims are not only expensive to defend but also can be high value if the employee is successful. And that is before reputational damage is taken into account!
What can fashion brands do to protect themselves?
- Warn employees of the consequences of harassment and provide appropriate training on harassment in the workplace.
- Ensure policies and procedures on dignity at work and equality and diversity are up to date and followed.
- Encourage employees to report any issues to management.
- If you receive a complaint take it seriously. Involve HR immediately. Maintain confidentiality. Carry out a fair, robust and impartial investigation and do not pre-judge the outcome. Seek legal advice where necessary, in order to make sure the situation is managed appropriately.
- Make sure you can justify the outcome of any investigation objectively and have documentary evidence supporting your decision.
The #MeToo movement has certainly shifted the balance of power and whilst this is, of course, a positive development, employers and senior stakeholders do have to be mindful of the legal issues and risks involved – or face the reverse consequences.
If you are faced with a tricky situation, get in touch. We work with management and with HR teams to help put effective policies and procedures in place. We also advise when a complaint is received, when an investigation is planned or is in process, and on dealing with the consequences of the outcome of the investigation.