Matt Groening, known for creating The Simpsons, and his wife Agustina Picasso, are being sued by a former employee for allegedly failing to prevent sexual harassment, sexual assault and battery committed by a colleague.
Whilst this took place in the US, with UK employers preparing for a new duty to take reasonable steps to prevent sexual harassment coming into force on 26 October 2024, this case serves as an example of the type of issues that employers will need to tackle, once the new duty comes in.
Sexual harassment by a colleague
Mr Groening's former employee, Giovanna Scotto, who worked as Mr Groening's property manager, claims that a colleague sexually assaulted her and sent her multiple text messages where he called her 'sweetheart' and told her that he missed her. Ms Scotto states that these messages made her feel sexually harassed and that she was being stalked.
Ms Scotto contends that she reported the incidents to Groening and Picasso, but claims that Groening, as her employer, failed to take appropriate, corrective actions. Ms Scotto is arguing that, because of Groening and Picasso's failure to act on the alleged harassment, the colleague was able to continue to stalk and subject her to harassment during her employment on Mr Groening's estate.
While not directly applicable to the UK, all UK employers should take note as the new duty will require them to take reasonable steps to prevent sexual harassment of their employees and they could be held liable for any acts committed, whether by colleagues, contractors or even third parties, potentially including clients. The new duty also comes with a sizeable uplift for employees who bring successful claims.
Sexual harassment reports on the rise
In the meantime, on this side of the pond, a report has recently been released which shows that sexual harassment against women and girls has risen by more than 50% over two years. While these numbers are understandably troubling, the report, compiled by the British Transport Police, has also found that the number of sexual harassment reports have doubled in that same period. This has been attributed to victims of sexual harassment being more willing to report such acts, which shows that effective reporting platforms and systems can have a significant impact on tackling this crime.
Having a successful reporting mechanism in place is also likely to be a key indicator that employers have taken reasonable steps to prevent sexual harassment in the workplace. For larger employers, reporting platforms are likely to be a key tool to allow employees who have been subject to sexual harassment and employees who have witnessed such incidents to safely report their concerns.
Learning points
While the spotlight has, rightly so, been firmly on preventing sexual harassment since the rise of the #MeToo movement, both the Groening case and the British Transport Police report have highlighted how important it is for employers to start planning for the implementation of the new duty to take reasonable steps to prevent sexual harassment.
Reasonable steps to prevent sexual harassment could include:
- A zero-tolerance approach to sexual harassment which is implemented from the top down;
- A stand-alone sexual harassment policy that clearly lays out what sexual harassment is, where it can occur, how it can be reported and how concerns will be dealt with.;
- Comprehensive, tailored and specific training should be given on the new policy for all employees, contractors and casual workers. What's more, it is vital that this training is given regularly – it will not be enough to provide the training once and never again;
- Reporting mechanisms will be a vital way for employers to show that they have taken reasonable steps to prevent sexual harassment.;
- Keeping all allegations of, and investigations into, sexual harassment confidential. This includes not divulging the names of the person making the complaint or the person who is being accused of sexual harassment. Employers should only disclose the names of individuals on a need-to-know basis;
- Clear investigative parameters and a commitment to investigate all accusations of sexual harassment thoroughly, impartially and objectively with respect given to the rights of all people concerned; and
- Addressing harassment allegations promptly and properly, including taking swift and appropriate action where necessary to prevent any potential further harm to the victim.
While there is no stand-alone Employment Tribunal claim that can be brought against an employer for failing to correctly implement this new duty, the Employment Tribunal can impose an uplift on compensation by up to 25% if they find that the employer is in breach of the duty when upholding a claim for sexual harassment. Therefore, not taking reasonable steps could prove to be incredibly costly, especially when compensation awarded in the most serious cases of sexual harassment can already exceed £50,000.
Employers should also be aware that the new Labour government has stated that they do not believe that this new duty goes far enough in protecting employees from sexual harassment. Indeed, they have intimated that they may extend the employer's duty by introducing a separate obligation to take steps to prevent third party harassment and give the duty a wider remit to include all reasonable steps. If this happens, the steps above could well be seen as the bare minimum to reach reasonable steps, let alone to cover what all reasonable steps looks like in practice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.