What lessons can employers learn following sexual misconduct allegations at PinkNews?

On 10 December 2024, the BBC released a documentary: “PinkNews: Behind Closed Doors” following its investigation into allegations of sexual misconduct made by employees against PinkNews’ founder, Benjamin Cohen, and his husband, Dr Anthony James, its Chief Operating Officer.

This BBC investigation and documentary arose because an unknown person operating an anonymous Twitter account, named “PinkNews Whistleblowers”, began posting about what they say was their experience of working at PinkNews, with other previous employees responding by posting about their own alleged experiences.

While PinkNews maintained that these allegations of sexual misconduct made against Mr Cohen and Dr James were “inaccurate and defamatory”, the BBC investigated the allegations further. It interviewed 33 current and former employees of PinkNews, with the interviewer on the BBC documentary saying that it wasn’t until he started speaking to former staff that he “realised the posts barely scratched the surface”.

During the investigation, some employees reported Dr James kissing and touching a junior colleague, who they described as appearing too drunk to consent, outside a central London pub. Another employee, Stephen Kyriacou, who worked at PinkNews between 2019 and 2021, described starting his role at PinkNews as a “dream come true”, but that this dream was “shattered” after Mr Cohen slapped him on his bottom at a Christmas party.

Could this be sexual harassment under the Equality Act 2010?

Under Section 26 Equality Act 2010, a person sexually harasses another person if they engage in unwanted conduct of a sexual nature, which has the purpose or effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The Equality and Human Rights Commission’s technical guidance makes it clear that a person can be sexually harassed by someone of the same or a different sex.

What does this mean?

“Unwanted” essentially means “unwelcome” or “uninvited”. It is not necessary for the victim to expressly object to the conduct before it can be deemed to be unwanted. “Conduct” can be wide-ranging and can include any verbal, non-verbal or physical conduct.

Unwanted conduct of a sexual nature can include a wide range of behaviours, including: sexual comments or jokes, suggestive looks or staring, sexual posts or contact on social media, spreading sexual rumours about a person, sending sexually explicit emails or text messages and unwelcome touching, hugging or kissing.

By virtue of the finding in Reed v Stedman [1999], a single incident can constitute harassment, depending on the facts and whether the incident could be said to have had the requisite purpose or effect on the victim. An employee does not therefore have to show a lengthy campaign of unwanted conduct of a sexual nature in order to establish they have been subjected to sexual harassment.

Importantly, in Insitu Cleaning Co v Heads[1995], an employer’s argument that a man could not know whether his conduct was unwanted, until it had been rejected, failed. The Employment Appeal Tribunal decided that would-be harassers cannot be allowed to “test the water” to see whether their conduct is objectionable to potential victims if their conduct is serious enough to reasonably be considered as harassment. There is, accordingly, no requirement for employees to make it expressly clear that any conduct of a sexual nature is unwanted before a finding of sexual harassment can be made. Sexual conduct, which may have been welcomed in the past, can also become unwanted over time. In A v Chief Constable of West Midlands Police [2014], the Employment Appeal Tribunal upheld an Employment Tribunal’s decision that an employee had been sexually harassed for two days, after an 18 month relationship with her work colleague ended.

What about the purpose or effect?

Importantly, a finding of sexual harassment does not depend solely on the harasser’s intention behind the conduct. It is not an excuse for a harasser to say they did not intend to sexually harass a person and it is unlikely to be a good excuse to say that their conduct was “banter”, although this is fact-dependent.

A finding of sexual harassment can be made if either the purpose of the unwanted conduct of a sexual nature is to violate the person’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for them, or if, regardless of the purpose of the unwanted conduct, this was the effect that the unwanted conduct had on the victim.

When assessing the effect of sexual harassment, an Employment Tribunal will assess the victim’s perception, the other circumstances of the case and whether it was reasonable for the conduct to have had that effect on them.

The allegations against the PinkNews leaders

One allegation made by a previous PinkNews employee, who the BBC named “Damian”, described on the documentary: “there was one time after a work event where we went to the pub and there were several other colleagues there. Over the course of the evening, colleagues left, Ben was extremely drunk to the point where he fell off his chair. He asked me out of earshot of my other colleagues, though there were colleagues nearby, whether I wanted to go back to his, because Anthony, his husband, wasn’t there. He said something along the lines of “Anthony is always getting with other men”. The suggestion was that we would do something sexually. I was extremely uncomfortable. I don’t even remember how I responded but I know that I quickly shut the conversation down…”.

The context in which Mr Cohen had asked Damian to go back to his house, including Mr Cohen saying that his husband would not be there, and that “Anthony is always getting with other men”, could result in this being deemed as conduct of a sexual nature. The alleged conduct was, as Damian describes, unwanted. In terms of the purpose or effect, from this extract alone, we cannot know what the purpose was. In terms of the effect, we know that Damian said on the BBC documentary that he felt “extremely uncomfortable” about this. Depending on the outcome of further analysis of the impact on Damian, this could be sufficient to have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

Fear of repercussions?

The BBC has reported that former employees at PinkNews stated that they had not previously reported the allegations of sexual misconduct because they feared any reprisal which could result from doing so. They discussed their fear of losing their jobs and their reputation in the industry being damaged.

In the BBC documentary, Stephen Kyriacou stated: “..none of us really felt like we could complain, even when it was justified because we didn’t know what was going to happen to us… The worry of having a bad reputation, when you’re trying to work in that industry..”.

Importantly, any less favourable treatment, such as a demotion, a failure to deal with a complaint or termination of employment, done on grounds that a person has rejected (or submitted to) an act of sexual harassment, can lead to an additional finding of harassment under Section 26(3) Equality Act 2010. Despite this legislation being in place to protect employees who reject or submit to sexual harassment, it is extraordinarily common for employees to keep these concerns under wraps due to a fear of retaliation.

A power imbalance?

Another reason why employees may not raise allegations of sexual misconduct contemporaneously may be due to an imbalance of power. It is common for more junior colleagues to feel they cannot raise allegations of sexual misconduct against a more senior colleague or a colleague in a position of power.

This is consistent with the position reported at PinkNews in the BBC documentary. The documentary reported that many employees resigned from their role at PinkNews without raising these allegations as they did not feel able to speak out about their experiences until the anonymous Twitter account was set up. In the BBC documentary, a previous employee at PinkNews, who alleges he was subjected to sexual misconduct, explained how he was “relatively young at the time” and how “a lot of the people in the company are relatively young when they start at PinkNews”. He stated: “when you’re faced with someone who is as formidable as Ben, you don’t necessarily know how to stand up for yourself”.

The presence of a power imbalance in a sexual harassment claim would likely be taken into account by an Employment Tribunal when assessing whether any conduct of a sexual nature was “unwanted” and what the effect of any unwanted conduct of a sexual nature might have had on the employee in the circumstances.

In accordance with the new statutory duty, as introduced by the Worker Protection (Amendment of Equality Act 2010) Act 2023, for employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment, employers should be carrying out thorough risk assessments in order to assess the risk of sexual harassment occurring. One issue employers should consider in these risk assessments is the extent to which power imbalances are prevalent within the workplace.

The Government also plans in its Employment Rights Bill to make a disclosure about sexual harassment a qualifying disclosure for whistleblowing purposes. As a result, workers who make a protected disclosure regarding sexual harassment would have additional protection from detrimental treatment and, should they be dismissed, their dismissal would be deemed automatically unfair if their protected disclosure is the reason, or principal reason, for their dismissal. Making sexual harassment disclosures would also mean that employers would not be able to prevent workers from disclosing details of the sexual harassment, for example, by including confidentiality provisions in a settlement agreement, as any contractual provisions to this effect would be void.

What about the culture?

As described in the BBC documentary, many previous employees at PinkNews reported the existence of a strong culture of drinking alcohol while they were employed. An anonymised employee described in the documentary that the alleged instances of sexual misconduct were “always fuelled by alcohol”.

Employment Tribunals commonly see claims of sexual harassment which fall within the context of work-related events and social events. By virtue of Section 109 Equality Act 2010, employers are liable for the sexual harassment their employees are subjected to if the sexual harassment takes place “in the course of employment”, unless they can show that they took all reasonable steps to prevent it from occurring. Whether an instance of sexual harassment takes place in the course of employment will always depend on the facts of the case, however, many of the allegations raised and referred to in the documentary would likely fall within the course of employment, such as to make PinkNews liable for the alleged actions of Mr Cohen and Dr James.

With the new statutory obligation on employers to take reasonable steps to prevent sexual harassment in mind, employers should consider, in their risk assessments, the extent to which social events take place and normal practices at any social events, and bear this in mind when they assess which preventative steps it would be reasonable to take.

The importance of confidentiality and an HR function

In the BBC documentary, previous employees at PinkNews reported a lack of confidentiality and a lack of an HR function at PinkNews, which they said led them to feel that, if they raised the allegations, their complaint would not be treated in a professional or fair manner.

One anonymised previous employee stated in the documentary: “you never felt like there was really confidentiality or any sort of respect for confidentiality. His dad was the lawyer for the firm, his husband joined in a sort of senior role, his sister-in-law at one point was involved with HR. You couldn’t separate the two, so I never felt, if I raised a serious grievance, that it would be heard or that it would be dealt with in a professional manner, as it would be in a professional organisation”.

This is significant in highlighting the importance of employers maintaining separate HR functions, clear reporting procedures for employees to follow and a strict sense of confidentiality. Employers should ensure they have up-to-date anti-harassment, sexual harassment and grievance policies which clearly signpost their process and the reporting procedures for employees to follow. Not only would these measures help to prevent sexual harassment from occurring in the first place, but they would also likely result in any allegations being reported and dealt with at an early stage.

In relation to the new statutory duty on employers to take reasonable steps to prevent sexual harassment from occurring, if employers fail to implement an HR function and clear policies outlining their process and reporting procedures which ensure parties’ confidentiality is respected, they will be unlikely to be able to demonstrate they have taken reasonable steps to prevent sexual harassment from occurring, should any allegations arise.

Potential compensation

As liability for sexual harassment falls within the remit of the Equality Act 2010, if a finding of sexual harassment is made, any compensation could include an award for injury to feelings. Awards for injury to feelings are assessed by reference to the Vento bands, as established in the case of Vento v Chief Constable of West Yorkshire Police (No 2) [2003].

The lower Vento band (currently) ranges from a sum of £1,200 to £11,700 and applies to “less serious cases, such as where the act of discrimination is an isolated or one-off occurrence”. The middle Vento band ranges from £11,700 to £35,200 and applies to "serious cases, which do not merit an award in the highest band". The top Vento band ranges from £35,200 to £58,700 and applies to “the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race".

It is also possible for employees to be compensated for any personal injury, such as psychiatric injury, caused by sexual harassment.

In the BBC documentary, Stephen Kyriacou explained: “I realised my mental health was bad, my physical health was bad because I wasn’t sleeping very well, and I was miserable..”. Factors such as this, which relate to an employee’s mental and physical health, would be considered in detail by an Employment Tribunal when deciding whether to make an award for injury to feelings or personal injury, and if so, how much to award.

Further, in line with the new statutory duty to prevent sexual harassment, if a finding of sexual harassment is made, Employment Tribunals must consider whether the employer has failed to take reasonable steps to prevent the sexual harassment from occurring. If a Tribunal finds that the employer has breached the statutory duty, it may order an uplift of up to 25% of all discrimination compensation awarded to the employee. The amount of the uplift would reflect the extent to which the employer was deemed to have contravened the requirement to take reasonable steps.

What can employers learn?

Various procedural points arise from this case. In the BBC documentary, an anonymised previous employee described: “I think the only future for PinkNews is a world where Ben is not at the centre of it. And that means putting in place really robust procedures, confidentiality procedures, proper HR that you know holds Ben to account”.

A significant learning point from this BBC documentary, regardless of whether there is any truth to the allegations, is the importance of putting an HR function in place, maintaining strict procedures which are clear for employees to follow, and implementing a confidential reporting line. This will likely lead to increased reporting of allegations of misconduct in the workplace, and more allegations being dealt with properly and at an early stage.

However, with the new statutory duty on employers to take reasonable steps to prevent sexual harassment from occurring, employers need to go beyond this. They will need to carry out thorough risk assessments of the likelihood of sexual harassment occurring in their specific workplace, by taking into account various factors, including, but not limited to, those referred to above, such as the prevalence of power imbalances, whether a culture of drinking alcohol exists and the extent to which social events take place. Employers must carry out this exercise before they can make any decisions about which steps would prevent sexual harassment from occurring, and which steps would be reasonable to take in the circumstances.

Employers also need to provide training to their employees so that they have a better understanding of the definition of sexual harassment, which types of conduct are unacceptable and how they can report any sexual harassment they experience or witness.

Please do get in touch if you have any questions about sexual harassment under the Equality Act 2010, the new statutory obligation for employers to take reasonable steps to prevent sexual harassment or if you would like help with providing training to your staff.