Here’s a fantastically candid, thought-provoking and above all inspiring guest post from Jim Pearson, Senior Partner at Abel & Imray.
We salute you, Jim, for being so open about your experiences, both personal and professional, and for sharing the benefits of your research and ideas. This is exactly what being an IP Inclusive Charter signatory is about: working together, even on the difficult issues, to make the IP professions more inclusive for everyone.
So read on if you want to know more about a problem that often goes unreported, how to recognise the signs and what we can do to prevent it…
Unless you’ve completely cut yourself off from the rest of society and all forms of news and social media (I could understand why you might have given how the world seems to be evolving politically in the last few years), you will know that the words “me too” have acquired what some might refer to as a secondary meaning. There will be many of you who read this article who will know what #metoo refers to as a result of experiencing such things first-hand.
If you need a reminder though, the hash tag #metoo went viral on Twitter in 2017 following the multiple sexual-abuse allegations against American film producer Harvey Weinstein, who is (at the time of writing) on trial in the US facing multiple charges of rape and predatory sexual assault (1). The resulting “Me Too movement” is a movement against sexual harassment and sexual assault, particularly in the workplace (2).
What constitutes sexual harassment?
Just to be clear here, I should probably give some examples of what constitutes sexual harassment in the workplace (3):
- indecent or suggestive remarks (e.g. comments of a sexual nature about someone’s body and/or attire);
- making jokes of a sexual nature;
- sharing, whether intentionally or otherwise, comments of a sexual nature about another person;
- questions, jokes, or suggestions about a colleague’s sex life;
- the display of pornography in the workplace;
- circulating material of a sexual nature (by email or social media or messaging platforms, for example);
- unwelcome and inappropriate touching (e.g. placing hand on lower back or knee), hugging or kissing;
- Unwelcome verbal sexual advances, or requests/demands for sexual favours.
Not all perpetrators are senior heterosexual men and not all victims are less senior women. However, it is the case that women are significantly more likely to be a victim and men are more likely to be the perpetrator (4). I’ve focused on this typical type of sexual harassment in this article, although many of my comments will apply to instances of sexual harassment where different genders and/or different sexual orientations are involved.
As a middle-aged white male partner in a private practice firm of patent attorneys and trade mark attorneys I can’t say that I’ve personally been on the receiving end of any sexual harassment in my professional life. But, as a father of four daughters I didn’t need to subscribe to https://twitter.com/EverydaySexism to get familiar with the types of behaviour girls and women have to endure every day – including both derogatory name-calling at school (we’re not quite sure why a boy at one of my daughters’ schools felt it appropriate to repeatedly call one of their classmates a slut) and casually-made threats of sexual violence (one of a pair of local boys shouting at the eldest of two of my daughters that his mate was “gonna rape your little sister” – her little sister was 11 at the time). The latter incident was pretty scary and shocking for me (there was more to it than this, but it got resolved in an OK way, quickly enough). All in all, I’ve been saddened that my daughters have had to toughen themselves up to this kind of behaviour already.
The prevalence of sexual harassment is not limited to the school playground of course. Are my daughters going to have to continue to battle against this as they eventually (I hope) get some paid employment somewhere? If recent stats are anything to go by, if you are a young woman working today you will more likely than not already have directly experienced some form of sexual harassment in the workplace. In 2016, researchers from the Trades Union Congress and the Everyday Sexism Project found that 52% of women had experienced unwanted behaviour at work including groping, sexual advances and inappropriate jokes. Among women and girls aged 16-24, the proportion reporting sexual harassment rose to 63% (5). Yet, as I think we all know, the vast majority of instances of sexual harassment typically go unreported.
Are we part of the problem?
But what about sexual harassment in the workplace within the IP profession? To think that we are all the nerdy bookish types who would never stray into behaviour that would constitute sexual harassment would of course be naïve in the extreme. If anything, the press and media coverage on the subject of sexual harassment in the workplace seems to suggest that the legal profession harbours some of the worse culprits.
The Lawyer reported in 2018 that 42 per cent of women said they had experienced sexual harassment at work, with instances including inappropriate comments, propositioning and unwanted physical contact (6). An FT article in March 2018 on this survey reported that, “in the two years to October 2017, the Solicitors Regulation Authority received only 21 complaints of sexual harassment within law firms, and has received just two reports since then”. Sexual harassment is widespread but victims tend to take little or no action. This might explain why the FT chose to publish their findings under the headline, “Women lawyers say sexual harassment is fact of life at UK law firms” (7) – victims tend to find themselves having to “just deal with it” without making a fuss.
Whether or not what’s going on in the legal profession as a whole is indicative of the state of affairs within firms and companies employing IP professionals, I think that it’s inevitable that improvements can be made in our profession. Men, in particular, but also women, underestimate how much sexual harassment there is in the UK, by quite some margin (8). It seems likely that whatever any of us think about how rare or common sexual harassment is in our workplaces, we’re underestimating the scale of the issue.
I’m not suggesting that my firm is perfect. I also suspect we’re not alone in that. We have more work to do before we can claim to be an example of best practice, and we’re in the process of taking positive steps to improve our policies and culture. I hope other firms and employers within our profession are doing the same. After all, it makes good business sense (9).
Having a culture where low-level sexual harassment is tolerated – or even propagated – by those running and managing the business, is going to drive away talented staff (10). Victims of sexual harassment are far more likely to move firms than take action. Although the matter is now decades old, I know that one of my former female colleagues almost left our firm when on the receiving end of a series of unwanted advances from a more senior male employee in the firm.
Members of senior management or “star” attorneys in the legal profession seem historically at least to have been able to engage in inappropriate behaviour and effectively get away with it. Times are finally changing now however, with individuals in senior positions in some of the larger law firms in the UK finding themselves accused of less than professional behaviour in recent years (11), with the potential for embarrassment and reputational damage to their (ex-)firms. On the flip-side, having an open, inclusive and gender-diverse workplace (which will naturally reduce the instances of sexual harassment in the workplace) tends to be more productive, be more profitable, be better at retaining talent and have a better external reputation (12).
What can / should we do?
Detailed guidance on dealing with sexual harassment at work has recently been published by The Equality and Human Rights Commission (13). If improvements could be made in your workplace, and you are someone who can make a difference, then I hope that you will be prompted into doing something positive, such as, for example:
- Making sure that your policies that concern sexual harassment in the workplace are appropriate, understood and put into practice. We’re working on this now.
- Raising awareness – for example simply reminding all staff that there is a zero-tolerance to sexual harassment in the workplace.
- Providing training on the subject, or access to training. I hope that the subject may be covered by an IP Inclusive webinar one day soon. Listening to and discussing that with colleagues could get some healthy conversations going.
- Ensuring that all those at the top of the organisation lead by example and call-out others when they witness poor behaviour not only in colleagues, but also amongst clients and suppliers.
If you’re in a position of management and think that this is too tricky, or not sufficiently important to tackle now, or just not your problem, then you should know that this issue is not one which is going to quietly go away. There is an active government consultation on whether the current laws on protecting people from sexual harassment in the workplace are effective (14). This may follow on from the Government’s published recommendations and comments following the “Sexual harassment in the workplace” report of “The Women and Equalities Committee” (15). There appears to be encouragement that regulators take a more active role, by:
“… starting by setting out the actions they will take to help tackle this problem, including the enforcement action they will take; and making it clear to those they regulate that sexual harassment is a breach of professional standards and a reportable offence with sanctions”
What do IPReg, CIPA and CITMA have to say about this?
It would seem that IPReg will in time come under pressure to take positive action to ensure that regulated entities are dealing with the matter appropriately. I’ve contacted IPReg, and also CIPA and CITMA, for their input on this matter. Instances of complaints being made against patent attorneys or trade mark attorneys and escalated to one of these bodies are rare. There has been only one case in recent years apparently – although that excludes the relatively high profile case brought against a solicitor/patent attorney before the SRA (the Solicitors Regulation Authority) for inappropriate (and criminal) behaviour in his leisure time (16). If the SRA figures are anything to go by, the low number of complaints to a professional or regulatory body should not be taken by themselves to suggest that instances of sexual harassment in the workplace are correspondingly low.
IPReg currently take the view that compliance with statutory and regulatory requirements rests firmly with the regulated entity/individual and they are the ones that must take action to ensure that they are compliant. Allegations of sexual harassment in the workplace should first be reported to someone senior/in HR within the firm (or, depending on the circumstances, to the police or to get independent legal advice). If an allegation is made within a firm, IPReg then expects the firm to investigate such an allegation and, if the matter is sufficiently serious to appear to be a breach of the Rules of Professional Conduct to refer the matter to IPReg for them to deal with. The focus on any investigation by IPReg would probably be on the issue of integrity.
It’s all a bit of a minefield this!
Female readers will no doubt tell me that all this is pretty standard stuff. I wonder what male readers will think though. Is this all a case of political correctness gone mad? Will office romances be a thing of the past? (I can think of at least three male ex-partners of my firm who are married to female ex-employees of the firm, who all met through work.) Will we be lambasted for complimenting someone on their new outfit, their new hairstyle or on the fact that their new diet seems to be working for them? Can you comfort someone who is upset by giving them a hug? Is it now risky for two work colleagues, one senior and one junior, to be booked into adjacent hotel rooms when travelling on business or to have an evening meal together?
To some men in senior positions this now seems like a bit of minefield. Perhaps that’s a good thing, as most of us can readily envisage situations where one set of actions would seem innocuous whereas the same actions in a different context would seem like sexual harassment. If you really can’t tell the difference, then my advice would be to adopt the cautious approach. It may surprise some to know that an uninvited hand on the thigh could cause your name to move from your firm’s letterhead to the sex offenders register. I’d hope however that most of us know how we should behave and have the capacity to be decent respectful human beings.
Calling out behaviour can be for the good
Some of us will get it wrong some of the time inevitably. For the most-part I would hope that this would involve the making of a clumsy comment, an ill-timed joke, or doing or saying the wrong thing by simply not knowing the audience sufficiently well. (Thinking of past indiscretions, I’ve done all three at least once during my time in the IP profession.) Some of these things will be perceived as undesirable/inappropriate by the person on the receiving end and that person will often find it very difficult or awkward to do anything about the matter.
What good will come of making a fuss after all? If your workplace has senior management made up of people who are at the very least striving to be decent respectful human beings (most of us are, honest!) then your calling-out undesirable behaviour, even if originating from one of said senior management, should be seen as a good thing. Tolerating low-level bad behaviour will lead to a poor culture in the organisation, which will eventually reduce productivity and/or affect staff retention. Challenging or calling-out such behaviour gives an opportunity for positive change and for the individuals concerned to learn, and hopefully self-improve. Good culture promotes improved efficiency in a business.
Calling-out the behaviour of others, particularly those more senior to you, is a scary prospect but it can and does work. As an example, I said something to a member of staff a little while ago, as part of what I thought was some harmless banter, but which certainly wasn’t seen as 100% hilarious by them. A little while later they called me out on the matter. I was initially taken aback somewhat as I had been completely oblivious to having stepped over the line, but once they had pointed out how they felt about the matter, I could see that my “banter” was misjudged on that particular occasion. It took courage for the person to approach me, but without being called-out I wouldn’t have had the opportunity to understand their viewpoint or to modify and hopefully improve my future behaviour. I appreciated their honesty and openness. Nothing negative has come from this; the respect I have for the person as an individual is undiminished and the nature of our professional and working relationship is, I think, as open and healthy as it ever was. If anything I think we trust each other a little more as a result of the way we both behaved. Organisations which have an open and honest culture, supported and promoted by senior management, will make such conversations easier, which I’m convinced is healthier for everyone concerned.
If calling-out poor behaviour, nipping it in the bud, or tackling things in an informal way doesn’t work, then a more formal procedure may be required. Ideally there should be an agreed procedure for dealing with things properly, preferably in a sensitive way for all concerned, if and when a matter needs to be escalated. If the behaviour is such that it could be grounds for dismissal or, worse, criminal prosecution, are the individuals in your organisation who might need to be involved (alleged victim, alleged perpetrator, HR people, line managers, etc.) adequately equipped to deal with the matter?
On the subject of escalation, it’s often said that making an allegation of sexual harassment can end your career; however, being on the receiving end of any serious allegation, whether or not justified, can also have potentially devastating consequences for the accused – end of career, end of personal relationships, or worse, end of life (17). In practice, dealing with this in a proportionate, balanced and sensitive way for all concerned appears extremely difficult to get right. I don’t want to be the catalyst that unfairly ends a career, or worse, for anyone – the subject troubles me (but that’s not an excuse not to get a conversation going!). There needs to be change, but in my view the changes need to be in promoting a healthy and productive culture in the workplace where everybody is treated with dignity.
I hope you will join me in ensuring that our workplaces in the IP profession are safe and happy places for all to work, making sexual harassment in particular a thing of the past. It makes good business sense. Workplaces which have a culture where everyone knows that they will be treated with dignity and respect by their colleagues at all levels are likely to be more productive and efficient businesses.
I’ve found this an extremely difficult article to write, and it has taken far too long for me to finish it. However, I hope that I get people talking about the subject in a healthy and positive way. I’d like the culture within the IP profession as a whole to be one we can all be proud of.
Abel & Imray
(If you’d like to contact me in relation to this article, please feel free to email me at work at email@example.com, but please put the text #private# in the subject of your email so that the email doesn’t automatically get distributed to others in my firm.)
Help if you need it
I sincerely hope that I’ve not caused anyone distress or upset by anything written in this article. If you’ve been a victim of sexual harassment or worse, or have concerns raised by this article, then please bear in mind the following suggestions:
- Talk to someone you trust and can confide in about what’s happened.
- Before speaking to someone, it may be useful to make notes about the incident, especially if recalling the incident is particularly upsetting.
- If the incident relates to something that has happened at work, or at a work-related event or business trip, then your employer has a responsibility to help and protect you.
- If you have witnessed sexual harassment taking place within a workplace environment, consider reporting it or calling-out the behaviour.
- If you can, tell the perpetrator to stop the unwanted behaviour. You could do this in writing if preferred.
- Employers should have a policy in place that provides a framework for reporting incidents / complaining about the behaviour of others – ideally a policy which specifically caters for instances of sexual harassment – which will set out what to do and who to approach for help and support. If you’d like to see our policy, once we’ve finalised it, please ask.
- If you’ve been a victim of sexual harassment in the workplace, and are unable for whatever reason to find resolution informally or via your company’s formal HR procedures, there are various independent sources of help and support you can draw on:
- If you or someone else is in immediate danger then phone the police on 999. Call 101 to contact the police if the crime is not an emergency.
- https://www.bbc.co.uk/news/entertainment-arts-50956870. [Online]
- https://en.wikipedia.org/wiki/Me_Too_movement. [Online]
- https://www.tuc.org.uk/sites/default/files/SexualHarassmentreport2016.pdf. [Online]
- Para 10 of this report – https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/725.pdf. [Online]
- https://www.theguardian.com/lifeandstyle/2016/aug/10/half-of-women-uk-have-been-sexually-harassed-at-work-tuc-study-everyday-sexism. [Online]
- Originally at www.thelawyer.com/metoo-lawyer-sex-harassment-survey-2018-2/ (no longer available) but see https://www.thelawyer.com/metoo-worst-experience-sexual-harassment/ and https://twitter.com/TheLawyermag/status/969139954940039168 which refer to the survey. [Online]
- https://www.ft.com/content/a1688488-211a-11e8-a895-1ba1f72c2c11. [Online]
- https://www.ipsos.com/sites/default/files/ct/news/documents/2018-03/international-womens-day-2018-global-misperceptions-of-equality-and-the-need-to-press-for-progress_1.pdf. [Online]
- https://www.cipd.co.uk/knowledge/fundamentals/emp-law/harassment/sexual-harassment-work-guide. [Online]
- See just one example here: https://www.rollonfriday.com/feature-content/mythical-sexual-harassment-free-law-firm. [Online]
- See examples here: https://natwestbusinesshub.com/content/legal-profession-tackles-metoo. [Online]
- https://www.catalyst.org/research/why-diversity-and-inclusion-matter/. [Online]
- https://www.equalityhumanrights.com/en/sexual-harassment-workplace. [Online]
- https://www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace. [Online]
- https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/sexual-harassment-workplace-government-response-17-19/. [Online]
- https://www.solicitorstribunal.org.uk/sites/default/files-sdt/11171.2013.Wotherspoon.pdf. [Online]
- https://www.theguardian.com/uk-news/2019/jul/11/who-was-carl-sargeant-what-were-allegations-against-him-wales. [Online]
Page published on 4th February 2020
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This was worth the read.
Brilliant article Jim, such an important topic. Your honest reflections will go a long way in giving others the confidence to begin looking objectively at their own behaviour. Best regards