Sexual harassment in the medical,legal workplace and beyond;by Eleanor Jane Turner and Diana Brahams

Jane Turner writes:

Recently there was an article in the British Medical Journal (BMJ) raising issues of sexual violence in the NHS workplace. This followed freedom of information requests to all NHS Trusts and police forces in England looking at levels of sexual assault and abuse taking place on NHS Trusts’ sites over the last five years. ¹ The statistics themselves were horrifying and, while I was aware that harassment was an issue in the workplace, I had not realised how frequent sexual violence was. The question in my mind was why does sexual harassment and violence happen in the workplace and what can be done about it? This and other questions are discussed at length in a webinar I attended, and a working party on sexual misconduct in surgery, led by Tamzin Cumings with legal input from expert lawyer and trainer Hina Belitz. ² It addresses some of these issues, shining a light on this problem, and providing some pointers about what can be done about it. The article in the BMJ by Hina Belitz, of Partner Employment Lawyers/Excello Law, considers confidentiality in settlement agreements to be a significant reason why the problem persists and to date has not been properly tackled. ³

“Sexual harassment can take many forms including banter and microaggression, and people do not appreciate that such behaviour is fundamentally unlawful; action can be taken against the perpetrator of sexual harassment,” says Hina Belitz. “People should be aware that the definition of harassment is wide-ranging. It is ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.’”

This issue urgently needs to be addressed and stopped, particularly in my area of surgical training which was highlighted by the Kennedy report. ⁴ The term “microaggressions” describes unintentional, subtle, indirect incidences of discrimination which can make people feel undermined. They are still unlawful, even if they are not intended, because it is very much about how the recipient feels. Microaggressions can relate to any of the protected characteristics, sex being only one of them.

Professor Scarlett McNally is a consultant orthopaedic surgeon with an equally lifelong career dedicated to supporting women in surgery, improving diversity, equality, teamworking, leadership, and tackling bullying in surgery. She has pointed out the importance of retention of women in surgery and how it is important to support them to stay. She has said that we “need to confront the perpetrators of sexual harassment lest they cause further harm to others”. She has pointed out the obvious support that is required with the hurdles of childbearing and childcare and has highlighted the loss to the workforce and the need for more support which could make the difference between someone staying or leaving and said that an overhaul of surgical training is required. ⁵

Sexual harassment is much more common than sexual violence and an important part of this is sexual banter. This can be sexual harassment because banter can violate a person’s dignity at work, and it can be difficult for them to raise this. It can be a particular problem where there is a misogynistic or hierarchical environment such as occurs in training environments. It is therefore safest to consider it a “no go” zone.

During my own training, I have noticed that there seems to be a very worrying lack of understanding about sexual harassment. There are anecdotes of senior doctors in leadership positions (supported by human resources) who when presented with multiple complaints of sexual banter or other forms of harassment have brushed these off as sexual inappropriateness saying that they don’t amount to sexual harassment unless there has been unwanted physical touching. This is plainly wrong. It is very concerning that those in senior hospital leadership positions are so misinformed as it perpetuates the problem and suggests to me that education in the area is required for those in leadership positions as well as juniors, with a safe mechanism for reporting. Either there is an urgent need for education of leaders (and all other staff) or there are probity issues with leaders covering up what they feel themselves is acceptable sexual banter which should just be tolerated. I fear it could be the latter.

Some might suggest a doctor might be being “oversensitive” to banter, but it is a delicate environment; a “joke” made in the presence of a female colleague who is either pregnant or has significant caring responsibilities saying that “all women are a burden on the NHS due to taking time off for maternity leave, carer’s leave”, can feel incredibly personal and intimidating. People may have had personal or family experience of sexual violence. A “joke” about “all women needing breast implants” might be very upsetting for a trainee who must somehow cope with the training hierarchy but may find themselves offended. There may be religious reasons why certain words or acts may be offensive or upsetting. It is understandable that sexual jokes can be offensive. For me, I’ve always felt it was an inappropriate topic for the workplace when the focus should be professional, and it is therefore disrespectful to patients and colleagues. It is personal who takes offence and I myself have felt uncomfortable not only with a joke but also that I might be implicated for having sat silently through a joke (albeit uncomfortably).

There can be so much pressure on a trainee’s career, as well as fear of repercussions should they raise a concern, that they may adopt a “keep quiet, keep your head down” attitude. It becomes very difficult to raise any issues because of the fear of being labelled “difficult” and being held back as a result. It should not be a case of having to choose between reporting harassment or keeping one’s career. There is also a concept of resilience to such treatment being a virtue. This again is a form of misinformation not least because a toleration of sexual harassment contributes to the very problem. A trainee reaching out to a female senior for a quiet bit of advice on how to tackle harassment being told, “it happens to everyone, it’s part of surgical training, but it makes you stronger. You need to be more resilient”, is unacceptable and proves how misunderstood the issue of harassment is in the NHS. This is a serious concern that urgently needs to be addressed.

Diana Brahams writes:

Many years ago, when I was travelling to work in central London on the “tube” there was an incident: as the train stopped at a station a young woman shouted so that all heads turned towards her. “You dirty old man – next time keep your hands to yourself!” She pointed to a middle-aged man in a raincoat before dashing out of the carriage just as the doors closed, leaving him behind to face the amused or disapproving stares of his fellow passengers. He got out at the next stop.

Sly gropes from strangers in crowded spaces are nothing new and (in my view) may be dealt with by landing a hefty kick on the assailant's ankle, a jab in his ribs or treading on his toes (stiletto heels are very effective for this). Unpleasant, annoying, unwelcome, these are technically batteries, but in the greater scheme of things, de minimis, as they are generally fleeting and minor and in many cases revenge can be taken swiftly and effectively on the perpetrator. However, there will be some readers who will disagree with me on this point.

But when this kind of act is carried out in the workplace, it can feel far more threatening, particularly if the offender is in a position of relative power as is often the case, causing the “victim” to feel generally unsafe while anxious about openly confronting and/or rebuffing the offender. She (or he) may be worried about consequences if he/she reports them to the line manager, or, if the line manager is actually the perpetrator, to a person higher up the scale. There may be a chance of a transfer, but this is not always possible and indeed why should the “victim” have to be moved rather than the offender? But the reality may make the latter unlikely. The victims may be unwilling to “make a fuss” or complain, let alone lodge a formal complaint with all that is likely to involve; the process is often disagreeable and slow and they may fear it will adversely affect their current situation and/or hopes of career progression. If they ignore unpleasant remarks or unwanted touching, it may act as a nudge for further and more blatant sexual harassment or “teasing” that is increasingly disagreeable and offensive. Even when this develops, a timid victim may keep quiet, particularly if the perpetrator is popular and they fear being labelled as a “bad sport”. Yet finding yourself at the wrong end of someone else's “sport” can be very miserable and intimidating.

How does this play out in law firms or barristers' chambers or when working as lawyers “in house”? My answer is that while lawyers may be more cautious and cunning in how they go about sexual harassment, or indeed any kind of harassment, at heart they are no different from anyone else in this regard.

When I was studying for the Bar, our criminal law lecturer (whom I remember well but whom I will not name here) had a well-deserved reputation for spicing up his lectures. They were certainly more amusing than any of the other subjects that year. He frequently illustrated his explanations and descriptions of criminal theory, dry statutes and decided cases by picking out individual students to play the role of victims and perpetrators (sometimes he named himself to join them). The ratio of women to men was about 15 to 25 in a class of 40 and I suspect, because I was married, he thought me fair game, particularly for cases with a lurid or sexual content. But, as LP Hartley notes in the opening lines of his novel The Go Between: “The past is another country; they do things differently there.” Can you imagine the uproar if a lecturer were to behave like this today?

Like everyone else, most lawyers' worst inappropriate behaviour follows excessive drinking (and I do not mean water) as office norms give way to “party” behaviour and inhibitions are ditched, following which solicitors and barristers and their staff may behave as badly as anyone else, especially when they get properly drunk. With inhibition banished, leering, groping and sexual badinage and propositions may follow. As a woman in a predominantly male world (now no longer so) I found the simplest way to avoid unwanted and embarrassing attention was to slip away early (spoilsport, I know). Remaining relatively sober while others get drunker and drunker around you can be difficult but at least you remain capable of anticipating and negotiating what could be an awkward situation which a drunk colleague may or may not recall when they have sobered up the next morning. I illustrate this with some experiences of my own which I doubt are unique.

A year or two after I moved chambers I went, as we all did, to the Christmas party. During the evening some of the new members were publicly presented with a token gift. Mine, handed to me unwrapped, was a large, illustrated calendar featuring the Chippendales (male and mostly nude models). The reason given for choosing it was that as I did so much medical work it would be helpful with the anatomy issues. I smiled graciously and thanked them while I felt quite annoyed and a little humiliated by this gesture from the male “silks” (QCs then), but I tried hard not to show my displeasure. I waited to dump it in the bin until I had left the room to go home.

A few years later, one of our senior “silks”, who was a member of the Reform Club, decided that all the silks and the most “senior juniors” should have dinner there to seriously discuss the future direction of chambers. Although we had many impressive up and coming young women barristers, at that time I was the only woman considered “senior enough by date of call to the Bar” to attend. I was, when I sat down, duly informed that I was, for this reason, their only object of sexual interest that evening. By then, having gained the reputation of not being a hard drinker, I was asked: “How will you be getting home?”

“My car is parked outside. I will be limiting myself to two glasses of wine.”

Some of my colleagues laughed while others groaned loudly. No doubt comments were also exchanged later but I didn't hear them.

On a different and later occasion, I was sitting opposite one of our “silks” at a formal dinner when, slurring his words somewhat, he demanded that I unbutton my blouse a bit further? I said “No.”

He responded by saying I was no fun and called me “a Jewish princess”. At this point I changed my seat very obviously to one at the far end of the dinner table and complained to one of my male colleagues, who hadn't heard him but said that I should ignore this as remarks like that were only to be expected as M was a coarse man when he had too much to drink. But whether it was to be expected, it was undoubtedly totally unacceptable and yet apparently it was to be accepted. I chose not to make an issue of it, but, as is obvious, I did not forget it. When M left our chambers I for one was not sorry to see him go.

But while all this was happening, I was supposedly a “mature” married woman and held a tenancy in chambers. I was not, by contrast, an aspiring young pupil or very new junior barrister who would have felt more vulnerable professionally and probably emotionally too due to this kind of behaviour. There was the added irony that my chambers specialised in employment law and the perpetrators I am sure would routinely provide sage advice to their clients on how to deal with this kind of behaviour when someone did make a fuss and lodge a formal complaint. No doubt there are now more complaints procedures in place everywhere to deal with what Jane refers to as micro-aggressions, but the process, which is too often protracted, may prove more upsetting and damaging emotionally and otherwise to the complainant than the original incident. Indeed it may affect their career unhelpfully far more than if they had kept quiet or had a tactful word with the offender or another trusty colleague.