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Ugly Assets and Good-Looking Liabilities

Why new legislation means an overly demanding client could land you in court.

The communications trade may have to brace itself for a raft of (perhaps not wholly) unexpected sexual harassment claims. Or alternatively acknowledge and rectify one of the great unspoken taboos of this “people-based” industry. 

A UK-wide change to the equality legislation, initiated and lobbied for by the Equality and Human Rights Commission, came into effect at the end of April, which sees the law extended to protect workers from “any unwanted conduct in relation to their sex,” and, in particular, will cast the net wider to make the employer liable for the actions of third parties – in other words, their clients – towards the teams of beautiful people that have been hired to get out there and sell their product.

Drunken pass
Recruitment strategies across the country may already be getting rethought. The stereotypes of the industry could be altered as agencies realise the damage a drunken pass at their curvy account manager could bestow upon the business.

The trade and everyone in it is to a greater or lesser degree guilty of cultivating – or at least tolerating – this cultural norm, and it is rarely, if ever, acknowledged that the  trade is staffed by a disproportionately high contingent of young, attractive staff. 
Employers may not necessarily want them to flirt their way to success, but if they did, the chickens are about to come home to roost.

The implicit sexism inherent in the practice of exposing young women to potentially lascivious attention is about to be reined in by a simple tweak to the 1975 Sex Discrimination Act.

The employer themselves will now be held to be “subjecting a woman to harassment” by proxy if a client leers, gropes or chats a step too far to a woman whilst she is working, and if the employer has failed to take reasonably practicable steps to prevent it. What are reasonable steps?

Hot water
Time – and the inevitable legal action – will tell, but in the meantime, new forms of practical prevention will need to be better than cure, and in reality, exposing your staff to that client you know to be a bit lecherous will land you in serious hot water.
It does prioritise a legitimate question that all employers ought to be asking themselves.  Are they being honest with themselves about what they are asking their staff to do? 

This is bluntly counterpointed by the awkward but valid thought that perhaps the law is trying to intervene in an area that social skills can deal with adequately. And is it fair to expect an employer to be accountable for the actions of anyone their staff may happen to run into while they are working? A practical equilibrium must be sought surely?

Yet the legislation is rigid, and very, very explicit.  Perhaps highlighting the problem with a zero tolerance approach will force attitudes to be adjusted across the board. Or maybe the industry will look radically different in a year’s time, as blatantly sexist hiring practices are quietly but universally shelved.  Does a problem even exist? 

Drum sought the views of the marketing and legal profession to find out more.

Rob Morrice (right)
Managing Director, IAS
Georges Simenon, the prolific Belgian author, who wrote a book every month of his adult life had another claim to fame. He reckoned he’d made love to 10,000 women.
If you’ve read any Simenon, particularly the Maigret novels, which chronicled the sordid side of everyday Europe, you’ll see he certainly had a fascination with affairs of the nethers. His books are apparently as true a record of 20th century life as you’re likely to get.

And, yes you’ve guessed it. Milords were making passes at kitchen maids. Politicians were propositioning PA’s. And the lady of the house was inevitably suggesting novel parking spaces to the chauffeur. So what has this to do with the new sexual harassment laws? Well, it demonstrates that nothing much has changed over the years and confirms what most of us already know. The workplace has always been a hotbed of naughties, most of the time consensual.

But did you know that it’s the number one meeting place for long term affairs of the heart? I have to admit to first hand experience. I married a girl who worked for Smarts. And no less than nine of our Manchester staff met their current squeeze at work.
And how many of us don’t know of an agency staffer who’s had a consenting relationship with a client? So while I’m in no way trivialising sexual harassment, my view is that if you have an open and honest culture, promote professional values and encourage responsible behaviour, you’re unlikely to fall foul of the law.
However, if the Equality and Human Rights Commission keeps this up, the communications community may have to do what I did when I found myself single at the age of 47 – turn to Internet dating. I wonder how Simenon managed before it.
   

Kirk Tudhope (right)
Ledingham Chalmers solicitors
Employers are reminded regularly that they may be liable for the behaviour of one colleague towards another but it is quite a novel suggestion that they may now be responsible for the misbehaviour of third parties outside their business.  That will be the effect however of the recent introduction of “third party harassment” into the Sex Discrimination Act.  Employers may want to brace themselves for claims arising from the conduct of persons entirely outside their direct control - clients, customers, suppliers or contractors.

If you are struggling to come to terms with this new concept, I regret to say you will find little assistance in the new rules.  Instead you will encounter one of the strangest and most anomalous pieces of employment legislation in recent years.

An employer now has a duty to take reasonable steps to prevent harassment of an employee by a third party. But here is the strange thing – this will apply only if the employer is aware that that employee has been subject to acts of harassment by one or more third parties on at least two previous occasions.  While an employer already has a duty to prevent all kinds of harassment of employees by fellow employees, any such harassment will have no relevance to the duty to prevent harassment by third parties!  So the fact that an employee has suffered sexual harassment from colleagues on two or more occasions does not impose a specific duty on his or her employer under the new rules.

There is a further anomoly in that these rules apply only to sex-related harassment arising in the course of employment and do not cover other forms of unwanted conduct connected to, for example, racial origin, sexual orientation or religious persuasion.
With all these qualifications we might be tempted to think that the number of actual claims based on third party liability will be low.

Employers should not however be misled into ignoring the new rules. They do, for example, reaffirm the principle that an employer’s duty to protect its workforce cannot be defeated by commercial interests. Even where a major customer is responsible for the harassment. Would you want to do business anyway with a customer who behaved that way?

Sarah Lindgreen
Director, MC2
All the talk in this debate has been about women, and the suggestion is always that we need to be cosseted through our careers in some way. It’s an out of date view – most modern women are perfectly able to look after themselves, particularly those with the brains and, for want of a better word, balls to embark on a career in the competitive world of PR.

The new legislation has brought a lot of old-fashioned views back to the surface, and the good companies are being tarred with the same brush as the bad.  

Professional and successful consultancies that want to deliver phenomenal results for clients don’t hire based on looks – we’re not escort agencies, after all.
The perception that PR agencies hire young girls based on the fact that they’ll look pretty at an awards dinner or provide some eye candy for crusty male clients is outdated, if it was ever really the case.  There will always be some rotten apples, but if someone feels they need to use sex, at whatever level, to win an account or secure business, it doesn’t say much for the quality of work the consultant delivers or the client expects.

We hire bright and capable men and women who can go out and promote our business, and our clients, thoughtfully and effectively.  

Our people know how to be good ambassadors for MC2 when they are networking, and they are more than capable of looking after themselves if they find themselves faced with inappropriate behaviour.  If a member of our team is made uncomfortable in any business situation, we stop work with the individual concerned.

We build strong relationships with our clients based on mutual respect and commitment. Our clients generally like the fact that our staff have personality and drive – but it’s the quality of their work that has got us where we are today, not the way we look in a bikini.  You have to earn respect, and you do that with brains, not looks.

Consistently demonstrating the sort of quality thinking that gets results is the only way to prove your worth to your clients – it’s something that no amount of batting eyelashes and lipgloss can replace.

Featured by The Drum

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