An employment tribunal award has opened the floodgates for further sexual discrimination claims against senior management, argues Hina Belitz, a specialist employment lawyer at Excello Law
A former Swiss Re underwriter has been awarded £1.3m by the employment tribunal following a decision partly upholding her claims for sex discrimination, maternity discrimination and sexual harassment after a senior manager made derogatory comments about her body and sex life.
These included remarks such as “I bet you like to be on top in bed” and the claimant being told to “shut up” and take a “more submissive role”.
One shocking case of mine involved a senior male director performing a sexual act in front of a highly qualified junior female employee”
The £1.3m remedy covers the claimant for past and future loss of earnings up to 2031, alongside non-financial losses including injury to feelings, and is one of the largest sexual discrimination pay-outs at a City company to date, representing a major step forward in recognising the unacceptability of workplace discrimination.
The Swiss Re case is unusual in the realm of sexual harassment, as such cases rarely make it to court for several reasons. For one, the sheer expense of litigation is not easy for most claimants to meet.
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Court proceedings also tend to be drawn out, and claimants must prepare themselves for their name to be in the public domain as a litigant, both of which are strong deterrents for those who would rather move on and keep private what they have been subjected to. Any claimant seeking to litigate needs nerves of steel to withstand the mental demands of the process.
One of the most important reasons why cases like this are rarely seen in court is that, in circumstances like these, a settlement agreement is often quickly drawn up.
These agreements contain financial incentives that pose a dilemma for victims: continue to fight in court, and accept the attendant risks, or take a payoff in exchange for withdrawing any right to a claim. In my experience, the latter is far more common. I have advised on numerous cases, taking some to court, but in the vast majority of cases, claimants have accepted a settlement agreement to avoid the difficulties of litigation.
Aviva’s chief executive Amanda Blanc has noted that her experiences of sexism worsened the more senior she has become”
One shocking case of mine involved a senior male director performing a sexual act in front of a highly qualified junior female employee. Despite the likelihood of success if she had brought a claim to court, the employee decided against taking legal action and instead accepted a financial payout. This trade-off is difficult for some claimants to stomach, but it is important to remember that the settlement process is not only designed to provide redress for wrongdoing but is also about swiftly exiting what has become a toxic environment with enough compensation to recover and secure a commensurate role elsewhere.
Sexual harassment in the workplace is worryingly common, and I advise upon it routinely in my practice. Claimants are subjected to mistreatment by senior managers who still have a lot to learn about acceptable workplace conduct following the #MeToo movement. The insurance industry in particular has been plagued by sexism scandals as a result of its male-dominated demographic.
Contrary to what some might believe, such mistreatment is also not exclusively targeted at junior employees, with Aviva’s chief executive Amanda Blanc having noted that her experiences of sexism worsened the more senior she has become. The comments made towards the claimant in Swiss Re demonstrate the way women’s assertiveness or powerful position can be used against them.
One must question whether this is (wilful) ignorance, as was pleaded in the Swiss Re case, or calculated behaviour by high-level executives who believe they are untouchable in light of the historical lack of cases brought against them. Sadly, this sort of belief is often borne out by reality, and this case therefore represents a step in the right direction in holding executives to account for their behaviour.
For many victims of harassment and discrimination, going to court is an unrealistic and unattractive prospect
The calculation of damages is particularly relevant, as the employment judges have recognised and compensated the claimant for potentially long-running financial losses. These judges not only possess a shrewd appreciation for the nature of the financial services industry, which has eyes and ears everywhere, but are also prepared to make inferences as evidence may be scant and well-hidden. Had the claimant in this case simply left the company with a settlement, stories about her being “unable to take a joke” would have spread, making it difficult for her to find commensurate alternative employment, potentially forever.
While it is not uncommon to find non-badmouthing clauses in settlement agreements, policing these is almost impossible given how hard it is to prove what has been said quietly between friends.
While the Swiss Re case may not change the reality that, for many victims of harassment and discrimination, going to court is an unrealistic and unattractive prospect, it reinforces the fact that such conduct is not and never will be acceptable, suggesting that the traditional “boys’ club” culture which is arguably ubiquitous in the financial services industry will no longer be tolerated as easily it once was.
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