HR 31 October 2018

No, Philip Green, banter is not a defence against sexual harassment

Philip Green is chairman of the Arcadia Group

Writing for Business Advice, Nick Henderson, a compliance expert at anti-harassment training provider VinciWorks, offers retail giant Philip Green a reality check after the Topshop founder dismissed claims of sexual harassment against him as “banter”.

Being surprised today that a powerful billionaire harassed the women who worked for him is like being shocked about once beloved 70s entertainment icons actually turning out to be horrendous sex abusers. Give someone unlimited power and a societal blind eye to run their workplace like a holiday camp in a Carry On film, and of course, there’s going to be a string of resulting sexual harassment cases.

Sir Philip Green was recently named in parliament as the man seeking to cover up claims of sexual harassment. He addressed the allegations in an interview with the Mail on Sunday, admitting that: “There has obviously from time to time been some banter, but as far as I’m concerned that’s never been offensive.”

The Equality Act

The Equality Act 2010 strictly defines harassment as unwanted conduct that has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. The law is pretty clear – whether the ‘banter’ was offensive or unwanted is not up to Philip Green’s personal interpretation.

Batting away these claims of both sexist and racist comments as “banter” makes about as much logical sense as the sizes in Topshop. Banter implies a ribbing between mates. Friends who are equals consenting to participate in a freewheeling back and forth where comments could, in other contexts, be hurtful, but are not because everyone involved understands them as only being said in good nature.

If Philip Green wanted to banter with his mates, he had the President’s Club for that. The corporate world of the Arcadia Group is by no means a place where banter can naturally occur, especially not between a billionaire mogul and the staff who work for him. The people Philip Green subjected to his ‘banter’ were not his consenting equals, they were his employees.

Further to that, an expensive, eight-month journey to secure a High Court injunction doesn’t scream actions that he is “happy to apologise” for.

Slapping an injunction against the accusers due to the non-disclosure clauses the women had been gagged with, says more about the UK’s continuing failure to tackle pervasive sexual harassment than it does about fears of trial by media.

Read more: The ten sectors most guilty of unwanted sexual attention

A culture of “relentless” harassment

A report just last week by the parliamentary Women and Equalities Committee spelt out how women and girls across the UK face “relentless” harassment which is so ingrained in British culture it has become normalised. No wonder Philip Green doesn’t see a single thing wrong with his “banter”.

The #MeToo movement took off just over a year ago because those who experienced sexual harassment began to speak up and speak out. They had to do so because of the continuing and abject failure for many businesses to effectively deal with the problem internally.

That Philip Green is entitled to a fair hearing conducted by his workplace is without question. A thorough sexual harassment investigation will give all sides a chance to air grievances and let an impartial figure decide if things crossed a line or breached company policy.

But the women who accused Philip Green did not have such a luxury. Even the strongest, most impartial sexual harassment policy would struggle to deal with accusations levied against its most senior executive. Organisations are still failing those subjected to hostile work environments on the shop floor, let alone at senior levels of management.

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Presidents Club

 

The Presidents Club scandal: Are employers liable for third party harassment?

The issue of liability for third party harassment has been called in to question following an undercover investigation by the Financial Times at an all-male charity event.

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In the US, courts have started to acknowledge the central thesis of the #MeToo movement in sexual harassment claims and defended women who did not report sooner, or through specified internal channels. Where there is a reasonable belief that a company won’t give a harassed person a fair hearing, there is little incentive to report.

Calling out abusers publicly is often the only way to get anyone to listen. And it shouldn’t take parliamentary privilege to do so. Clearly, British business still has a long way to go.

Business lessons from the Philip Green case

For businesses still struggling with how to get #MeToo right, there are a few key lessons from Sir Philip’s masterclass in “banter”.

First, if people aren’t reporting harassment, it’s not because it isn’t happening, it’s because they don’t think it will make a difference. Try measuring the staff’s perception of harassment, then comparing it to the actual number of complaints received. It will show fear of reporting is a real problem.

Second, banter is never the case between a superior and a subordinate, nor is a workplace ever the right environment for banter. Sexual harassment is defined as unwanted conduct. Nobody wants to come to work and be degraded and humiliated, no matter how many NDA’s they are made to sign.

Third, don’t waste money on super-injunctions; they never seem to work.

Nick Henderson is a compliance expert at VinciWorks, a leading provider of online compliance and anti-harassment training. VinciWorks’ new online sexual harassment training course MyStory was recently shortlisted for a Learning Technology Award

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