The Mishcon Academy Digital Sessions. Conversations on the legal topics affecting businesses and individuals today.
Adam Turner, Professional Support Lawyer, Mishcon de Reya
Hello and welcome to this Mishcon Academy Digital Sessions podcast. I’m Adam Turner, a Professional Support Lawyer in Mishcon de Reya’s Employment team. Today we’re talking about the MeToo movement which has shone a global spotlight on the issue of workplace sexual harassment. The phrase MeToo was first used in 2006 by sexual assault survivor and activist, Tarana Burke. In 2017, Alyssa Milano’s MeToo Tweet about sexual harassment in the entertainment industry went viral, triggering global attention towards the movement. That was exactly five years ago and this week our team has released a series of articles about significant MeToo milestones, which you can find on our website and in the description of this podcast. In today’s episode we’re reflecting on the last five years of MeToo developments. I’m joined today by my colleagues Joanna Blackburn and Susannah Kintish, both Employment Partners in the team, with very substantial experience advising employers and individuals on the whole spectrum of employment law matters, including sexual harassment. Joanna also gave evidence on sexual harassment issues to the Women and Equalities Select Committee in 2018. So, Joanna and Susannah, a very warm welcome. Can I ask you both what impact the MeToo movement has had in the last five years and what do you think has changed?
Joanna Blackburn, Partner, Mishcon de Reya
Firstly, thanks Adam for that introduction. I think Susannah and I both say that a lot has changed and not much has changed and that may sound contradictory but the two work, actually I think pretty much in tandem. I think societally, and in terms of behaviours, a lot has changed, I think employers have reacted actually pretty well to the societal change around MeToo but if you’re asking us as lawyers what’s changed legislatively, the answer is nothing. The reality is that there’s been more done in the back rooms of employers’ reactions to sexual harassment in the workplace than has happened in Government and, you know, you can reflect on many reasons for that and it may well be that these things just take more time or that society changes in a way that overtakes Government but it’s now four years since I gave evidence at the Women and Equality Select Committee. We were talking about all the issues that arose in that first year post-MeToo when it was very much on everybody’s top of agenda to do list and we haven’t really come any further. There’s been a lot of talk and not much action governmentally and I mean there’s been Covid in between and we have to bear in mind that a lot of things got put on the backburner but I think there has been a lot of change in our employer clients. I don’t know, do you agree, Susannah?
Susannah Kintish, Partner, Mishcon de Reya
I totally agree and I think we have the privilege if you like of seeing this from so many different perspectives, at different points along the continuum since the movement started and I think I’ve certainly had moments where I’ve thought wow, five, six, seven years ago an employer would not have had the reaction that it is now having to this issue being raised, you know you are having thorough, independent investigations. The regulatory overlay I think has certainly helped with the teeth that the legislation hasn’t unfortunately brought in terms of the remuneration regime, the SMCR regime, really bringing non-financial misconduct I think to the forefront. You see people really being hit where it hurts in their pockets when these kind of accusations are made and are upheld by way of an investigation but then I also have moments where I think, what? What has happened? We have made no progress. I had a client who came to me not so long ago, who had been the subject of an investigation, a female who had been the subject of an investigation for three months because she had been accused of having a sexual relationship with her boss, okay. The boss, no investigation into him. Allegations not upheld, yet all of her subordinates and all of her team had been interviewed, as part of this investigation, and her private life and her sex life were really being discussed without her knowledge, behind closed doors, and she said to me, “Surely this can’t be right?” and it was a real sort of head, head in hands moment for me.
Joanna Blackburn, Partner, Mishcon de Reya
It’s interesting though isn’t it because I act predominantly for employer clients and I would have said to you pre-MeToo that the reaction I saw mostly from employers when somebody raised an allegation of sexual harassment, was that the complainant was paid off. And they were often paid off very well and in fairness, often they didn’t want to stay in the organisation and so it was the outcome that they wanted but then when I would say to my client, and now what are we going to do about the person who is accused? Not necessarily suggesting they should be taken out of the organisation but certainly that proper investigation should be undertaken and the matter should be considered, quite often there was no take up, no interest in having that conversation, even when they’d just paid a lot of money to somebody and clearly, even if the allegation proved not to be true, it needed to be looked at. Now, I don’t get that pushback so I’m interested that, there is still, will always be outliers but now the default is a proper investigation and proper consideration and to an extent, you see the pendulum swing. Wherever you get societal drivers changing things, initially you can get quite a large swing and so I have sat with a number of male individual clients who have been accused, guiding them through investigations where they have felt they have not had a fair shout, that they have felt that consensual matters were later reframed as non-consensual, where they felt that nobody was interested in hearing their perspective on it or frankly, they just haven’t read the change in zeitgeist and their behaviours have continued to be inappropriate in the workplace. And I understand why, in those circumstances, those clients feel aggrieved but the reality is you do have to read the room and the room has changed and I think, I think employers are far more likely now to take a robust approach to removing people that are found to have crossed a line, and that line has moved. That line has undoubtedly moved. I mean, when you started with MeToo, it was at the very extremes of horrific behaviour and we do all have to remember that is not most people’s experience of sexual harassment in the workplace and it’s not to downplay the impact but the needle has moved and I’m sure you’ve found that too.
Susannah Kintish, Partner, Mishcon de Reya
I agree and I think, I think sometimes the solution doesn’t necessarily fit the real problem because the solution is framed around the most extreme cases and yes, the exist and I’m sure they continue to exist but they are, as you say, extreme outliers, you know, I don’t think I’ve come across a case with the extraordinary factorial matrix that you know, the Weinstein case had but I think it’s particularly interesting what you say about the power imbalance because, you know from my experience acting for both employers and for senior individuals, that’s often the nub of the issue. It’s not necessarily the sex or the sexual misconduct, it’s the, it’s the insinuation of coercion because of the power imbalance that exists and I’m interested actually, to hear maybe what some of your employer clients are doing around redressing the power imbalance because obviously there’s nothing you can do where it’s a junior and a senior but it’s, that’s not just where the power dynamic lies, it also lies in underrepresentation. So, I do think that a lot of the other societal movements that have peppered around MeToo, around underrepresentation and people feeling like they have more of a voice, I’ve certainly felt that that has helped and really provided a boost to the issues that the MeToo movement shone a light on because the more minorities, be it female, be it ethnic minorities, be it LGBTQ minorities feel that they are represented in a workforce, actually the more change there will be, where people speak out, the more employers will feel that actually, we need to come up with the frameworks to enable people to speak out, where previously it would have been almost unheard of because of the potential repercussions.
Joanna Blackburn, Partner, Mishcon de Reya
I think that’s absolutely right and I think where you’ve got a power imbalance, you’ve got a gender imbalance, you’ve got mostly men at the senior table and let’s all be realistic about this, that is still the case in most large businesses. You will always struggle with addressing the fundamentals that go to abuse of power and coercion and the fear factor of how you progress your career. But I think MeToo has come up, well it started as a hashtag. A lot of people, when they first heard the phrase #MeToo weren’t on Twitter and would have thought what on earth is this all about? But you see how social media drives change. The oxygen that’s brought to these problems by the fact that people who may have, in the past, have had no ability to bring to light the abuses that were going on in an organisation. Now, can have the world listening to them very fast. If you can connect in with the right person on social media who re-Tweets what you say, you can start a snowball running down a mountain and I think employers have become really aware of that too. And that is good. I mean, it needs to be managed carefully, we need to all be very mindful that an allegation is not a proven fact but in the past, allegations were just brushed away and that was absolutely wrong and so now, you have employer clients who if they have any face onto the world, are conscious of the fact that their ability to just pay people off and move on has been materially impacted just by the world has moved on and the way that everybody is a communicator, everybody is a broadcaster, everybody is a publisher. In the old days, I can remember very many years ago and this really does show my age, a very disgruntled person, in fact a chap who sat outside an office building in our neighbourhood in Holborn with a loudhailer and a big banner every day, complaining about that business and the wrong that he felt it had done to him and, you know, it got to the point we’d just sigh as we walked past as he sort of shouted at the people coming in and out, you know, that was a very small-scale but hugely annoying, for the organisation, protest and no one will know, you know, where the rights and wrongs were. Today, he’d go on Twitter, he’s hashtag it, he might get momentum, he might not but is that a risk an employer wants to take? Usually, not. And I think also, the reality is that perceptions have changed about what should be tolerated. I have a very esteemed, very successful female banking client who talked to me very graphically fifteen years ago about the kind of overt sexual harassment that she had endured in the early stages of her career and it had never occurred to her that there was anything wrong with it and she used the phrase, “casting couch” and of course, you know, the phrase “casting couch” goes back to the film industry and the, you know, the fifties and sixties in The States, that breeds a Weinstein, who comes from that background of assuming that he has that power and he did for decades. I helped some of the Weinstein victims after MeToo came to light and what was apparent was how much the industry had closed around and protected him and so many people knew and so many people pretended they didn’t know or they said they’d known he was a bully but you know, they hadn’t known the rest of it. I don’t buy that but I do accept why people were frightened and why they felt there was no outlet. Social media changed that. We’re not going back. You’re not putting that genie back in the lamp and that’s for the best. So, now employers and individuals have to deal with the landscaping which they, they live and operate.
Susannah Kintish, Partner, Mishcon de Reya
Yeah, and I suppose talking of the pendulum swinging, from the cases that you see, I mean I certainly have found that in some cases the pendulum has at individual instances swung almost too far the other way, particularly in a regulated context where you know you get the odd cases around doctors and consultants and effectively, these are disciplinary events being potentially career ending, you know, if you can’t work for the NHS, who do you work for? And I think that we are in those instances and some cases in this environment because you have senior individuals in financial services, you know the rolling bad apple regime of the SMCR follows them. If they have a black mark, they cannot get another job and sometimes, you know you were talking about having senior men sometimes sitting in your room devastated and sometimes you think well, is it a price worth paying to have a light shone on these issues but I do think that employers have to be very, very careful where these people may never work again to bear in mind that allegations are allegations and also, in this investigation culture, I know that we’re both seeing huge amounts of investigations and we’re acting in investigations a lot but to be very, very careful about how these things are investigated because sometimes so much damage is done in the process of trying to unveil the truth that it renders the whole thing almost pointless, you know where everybody is being spoken to, not really thinking about confidentiality, anonymity, the use that that report could be put to at the very outset, can really have catastrophic consequences for an individual.
Joanna Blackburn, Partner, Mishcon de Reya
And the complainant too, I think it’s very easy for employers to assume that a complainant actively wants the equivalent of a Leveson Inquiry to be conducted in their workplace and sometimes they do but we need to stop and listen to complainants and really understand what it is they want. Sometimes what they want is not what we can give. A complainant that says, “I would like to just leave and I would like to be compensated for what happened but I don’t want you to look into this.” That’s not viable because there are other employees in the workplace. Employers have a duty to protect their wider workforce but equally, the kind of investigation that you describe where you know everybody in the organisation is hauled into rooms and interviewed by barristers as if you know, they’re in an episode of a bad 1980’s Crown Court, is not helpful either. I think pendulums always swing and in this instance you have to let them settle but I think we would get further with resolving problems – and by the way, I’m not talking about the extremes of Weinstein type problems, I’m talking about the problems that we see more of, which are lion in a less criminal scenario – what would be done through a sort of combination of education, really making employees, at all levels, understand how other people feel about what they do, you know, why people may not find you coming and putting your arm around a junior employee as you give feedback, even if you are giving feedback that’s positive, an acceptable approach, you know why that has moved out of a zeitgeist where when, you know when I was first in practice, that would not have been unusual, I wouldn’t have thought it unusual. That kind of education, thinking about how other people feel about your behaviours, thinking about the consequences of you getting it wrong would really help and then I think there’s a lot to be done around how you respond to complaints being brought, how you listen to complainants, how you explore options other than a very binary who’s right and who’s wrong because the reality is often, the truth lies somewhere in between, in the grey. And then how you move forward because in a world where people can’t be allowed to recognise their mistakes and if they’re not extreme, move forward from them in a positive way. If there can be no truth and reconciliation then we’re left in a situation where all employers are doing is moderating over dismissals and payoffs. Whilst that is sometimes where it lands, it shouldn’t be the only place it can land.
Susannah Kintish, Partner, Mishcon de Reya
And I mean I know that you’re an accredited mediator and I know that we have a couple in the team. From your experience, have you, have you seen disputes or issues where there are allegations of sexual harassment resolved through that, through that type of a process?
Joanna Blackburn, Partner, Mishcon de Reya
Yes, I have. It may sound unlikely but I have and often, as I say not at the extremes but in the less extreme cases, often it is what the complainant wants, they don’t want to leave, nor do they want to be responsible for somebody else being fired. That’s not an easy scenario to live in, in an organisation. Often what they want is for someone to acknowledge that they did something wrong, to apologise for it genuinely, in a real way, and to learn and to move forward in a positive way and it is possible and with a skilled workplace mediator, you can get those outcomes. But even if you are in a situation where people leave, be it the person accused, the person who’s brought the allegations, or both, you then still have a workplace that needs to move forward and it’s not often enough to just say well, we’ve dealt with that, that’s done and gone, you know cheques have been written, we’ve all you know, we will live and learn and you know, let’s you know, start the day afresh without ever talking of these things again. That’s not how things work and I think a lot of organisations fail to recognise that there is a lot of information spread about situations that happen and that other people feel very uneasy if they’re working in an organisation that they feel hasn’t taken on board the fact that there has been an issue in some way or another. So, in many ways, workplace mediation is a way to help an organisation move on more positively, learn from its mistakes in a really valuable way and stop it becoming, you know, a ongoing problem because where things have happened once, quite often they will happen again or it speaks of a cultural problem. You know, you do get one bad apple but you also get cultural issues and if it’s a cultural issue, you need to address it and get ahead of the problem, when you can.
Susannah Kintish, Partner, Mishcon de Reya
And I suppose talking of never talking about things again, that was, you know, another theme that came out of the, of the MeToo movement in the form of NDAs, should they be banned? Should you have to have advice on them? You know and to my mind, I think actually, where the pendulum has settled on that, I mean I think it’s settled in a fairly sensible place in terms of the, you know, the carveouts for I mean obviously the idea that you couldn’t notify the police or a health professional was…
Joanna Blackburn, Partner, Mishcon de Reya
Was bizarre. Was bizarre.
Susannah Kintish, Partner, Mishcon de Reya
…bonkers, in the extreme.
Joanna Blackburn, Partner, Mishcon de Reya
Yeah.
Susannah Kintish, Partner, Mishcon de Reya
How, how are you seeing that play out? I mean, personally I’ve had some quite strange experiences, particularly where I’ve been acting for employer organisations and some claimant lawyers seem to have latched onto this concept that confidentiality is somehow worth more in a settlement and to me it entirely misses the point of the whole ethos of that whole line of thinking on NDAs, it’s not so that you can be paid more for silence, it’s to really ensure that issues that are serious can still be ventilated and you can get the help that you need and it always strikes me as a very bizarre negotiating tactic and one that inevitably backfires but what are your thoughts on where that’s all settled?
Joanna Blackburn, Partner, Mishcon de Reya
I completely agree with you. For a start, when that issue about NDAs first came out and you couldn’t go to the police or you couldn’t speak to your doctor, I think most of us were utterly perplexed that anybody would interpret an NDA as doing that and then of course we saw the wording of the particular NDAs in question, which were relating to Weinstein and they were bizarre, they were extraordinary, none of us had ever seen anything like it and so a lot of what now sits in NDA wording with express carveouts to be able to go to a regulator, the police, speak to your doctor, are things that the rest of us would have said well, you know, that goes without saying, you know as day follows night, that’s right. But I would absolutely agree with you, to suggest that NDAs only benefit employers and should be used effectively to sweep problems under the carpet, I think is naïve. I think NDAs are often very much wanted by an individual who has brought a complaint, they don’t want to be the subject of conversation in their workplace, they want to know, and actually I have far more conversations about individuals wanting to know that the people in the organisation will not talk about the settlement and what’s gone on than I do the other way, with individuals not wanting to sign NDAs. They inevitably become an issue where there is a suggestion that NDAs are being used to allow organisations to move forward without ever dealing with the underlying issues but I think employers are dealing with the underlying issues and I think that is a big change in the last five years. So, I would absolutely endorse what you say, I think they have benefits for both sides. They allow safe space for individuals to raise things and to treat them in a binary way as employers just gagging employees is to misunderstand a far more nuanced landscape.
Adam Turner, Professional Support Lawyer
Mishcon de Reya
So, I think we’ve covered an awful lot of ground and this is perhaps a good place to wrap up. It’s fair to say that the MeToo movement has been critical in bringing sexual harassment to the forefront of discussions and it remains a key driver in reform and as we’ve heard, it’s irrevocably altered expectations of employers, regulators and lawmakers. A very big thank you to Joanna Blackburn and Susannah Kintish for joining me for this Mishcon Academy Digital Sessions podcast.
I’m Adam Turner and the Digital Sessions are a series of online events, videos and podcasts, all available at Mishcon.com. If you have any questions you would like answered or suggestions of what you’d like us to cover, do let us know at digitalsessions@mishcon.com.
The Mishcon Academy Digital Sessions. To access advice for businesses that is regularly updated, please visit Mishcon.com.