Russell Brand and workplace sexual harassment – What obligation does an employer have?

The chilling allegations made against Russell Brand in the recent Channel 4 Dispatches Documentary, and the fresh accusations that have appeared since, have rocked the mainstream media leading to uncomfortable questions being asked of Brand’s former employers, the BBC and Channel 4.

Although Brand’s out of office wrongdoing may have overshadowed the behaviour described in the documentary that occurred in the workplace, one Channel 4 showrunner alleged that the TV presenter exposed himself to her and made aggressive sexual advances towards her in his dressing room. Whilst live on his BBC Radio 2 show, Brand threatened to sexually assault a colleague, offered to take his assistant, naked, to Jimmy Saville during an interview in 2007 and would frequently strip naked in the studio himself. He was only encouraged to step down from his position at the BBC after, again on air, he called Fawlty Towers actor Andrew Sachs and left a voicemail message bragging about having a sexual relationship with the actor’s granddaughter.

Sexual harassment occurs when one person engages in unwanted conduct of a sexual nature and this conduct has the purpose or effect of either violating another’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. The fact that an employee has suffered the conduct over a period of time does not mean that it is welcome. Employers may be vicariously liable for harassment carried out by their employees, unless they can show they took “all reasonable steps” to prevent it. Reasonable steps may include implementing effective policies, providing training, implementing reporting mechanisms and conducting fair and thorough internal investigations of all grievances.

The revelations about Brand’s conduct come in the wake of a report published in the British Journal of Surgery that exposed the extent of sexual misconduct in NHS’ surgical profession and just months after ITV were accused of turning blind eye to Philip Scofield’s affair with a junior member of staff. This isn’t the first time this year that the BBC has to defend itself. In May a 24-hour hotline was launched as part of an inquiry into what the corporation knew about allegations of sexual misconduct against DJ Tim Westwood. An update on the BBC’s internal review into the allegations admitted that the corporation was aware of some allegations of sexual misconduct in 2012 but that the review, “has not found any evidence about whether any safeguarding or similar measures were taken in light of the allegations.”

The BBC is now, “urgently looking into issues” about Brand’s behaviour and commented that, “we hope that demonstrates that the BBC takes issues seriously and is prepared to act.”  Similarly, Channel 4 stated that even after “extensive document searches” they have “found no evidence to suggest the alleged incidents were brought to the attention of Channel 4.”

“Open Secrets” – Should employers wait for formal complaints?

Commentators in the entertainment industry have described Brand’s behaviour at this time as an “open secret” and yet the Channel 4 showrunner that Brand exposed himself to recalled, “I didn’t want to tell anyone what he had done because I didn’t want to lose my job.” Employees in industries where there are acute power differentials may not feel able to come forward if an individual in a senior position abuses their power. Employers should remain vigilant and should not wait for formal complaints from an alleged victim where there are reports, even informal ones, of inappropriate behaviour. Formal and informal complaints may come from others who are aware of certain behaviour but are not the victim of it. Employers should take proactive steps if they suspect employees are being subjected to harassment and will soon have a positive obligation imposed.

The Worker Protection (Amendment of Equality Act 2010) Bill 2022-23 is in its final stages before receiving royal assent and will impose a positive duty on employers to take reasonable steps to prevent sexual harassment and grants employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have failed in their duty.

How does an employer ensure that all parties are treated fairly?

Allegations of sexual harassment can have a significant impact on all involved including the complainant and the alleged harasser as well as witnesses and no presumption of guilt should be made. A thorough investigation should be carried out without delay and, as far as possible, the employer should ensure that the investigation into the allegations is kept confidential, while balancing the need to obtain evidence from other witnesses.

The Equality and Human Rights Commission Guide provides the following advice for employers:

• Timescales – set realistic timescales for each stage of the process and communicate these to the alleged harasser and the complainant.
• Roles and responsibilities – during the investigatory process the roles and the responsibilities of those involved should be clearly defined with independence and objectivity ensured at each stage of the process. Where possible, people from different parts of the business, who have no or less knowledge of the people involved, should be appointed and, where necessary, employers should consider appointing an external investigator to ensure objectivity.
• Advice – Employers should ensure that investigators have appropriate expertise to investigate and that they have access to appropriate advice.
• Right to be accompanied – the complainant and alleged harasser should be informed of their statutory right to be accompanied to formal grievance or disciplinary hearings by a trade union representative or a colleague. Employers should consider extending this right to be accompanied by a colleague or trade union representative to other meetings such as investigation meetings where reasonable.

What now for Brand?

Brand no longer works in the mainstream media and instead posts videos on alternative media platforms about anti-establishment politics, his spiritual journey and, more recently, UFOs. In light of the allegations YouTube has suspended Brand’s ability to earn advertising revenue as they consider that he has violated its creator responsibility policy.

Brand has issued a statement describing the “coordinated media attacks” as “baroque” but the indiscretions caught live on BBC Radio 2 are harder to dismiss and may make it more difficult for the BBC to maintain that they lacked knowledge of inappropriate conduct or to defend their failure to take action or investigate at the time because they had not received any formal complaint.

We are experienced in advising employers on their obligations to protect employees from harassment. Please contact Clare Gilroy-Scott or any member of the Employment team if you would like advice on an ongoing issue or training on the legal obligations on employers.

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