This is the second article in a series on common legal issues in the gaming and tech industries. This article will focus on sexual harassment and discrimination; issues that continue to receive press coverage.

Sexual Harassment in the Workplace

The workforce of the gaming industry in the UK is currently predominantly male (67%). While not intrinsically an issue, this may be a contributing factor to the reported problematic culture that pervades the sector.

There is a risk that talented employees suffering harassment from their colleagues will leave the industry permanently as a result of the culture, something that would ultimately damage the consumer experience. If left unchecked, and an employee can establish a claim against a studio/production company, then not only is there a risk of negative publicity for the employer, but also substantial legal costs.

Similarly in the technology sector a survey conducted by Studio Graphene found that 49% of women in tech had experienced discrimination in the workplace, and 20% resigned due to discrimination and harassment in the workplace. As seen in the above criticism of the gaming sector, it has been alleged that various tech giants have cultures which “perpetuate harassment and gendered discrimination.”

In England and Wales, the law defines sexual harassment as:

• conduct of a sexual nature that has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment; and
• less favourable treatment related to sex or gender reassignment that occurs because of a rejection of, or submission to, sexual conduct.

Sexual harassment can occur in many forms. While this is not an exhaustive list, examples include:

• physical conduct of a sexual nature, unwelcome physical contact or intimidation;
• persistent suggestions to meet up socially after a person has made clear that they do not welcome such suggestions;
• showing or sending offensive or pornographic material by any means (e.g. by text, video clip, email or by posting on the internet or social media);
• unwelcome sexual advances, propositions, suggestive remarks, or gender-related insults;
• offensive comments about appearance or dress, innuendo or lewd comments;
• leering, whistling or making sexually suggestive gestures; and
• gossip and speculation about someone’s sexual orientation or transgender status, including spreading malicious rumours.

While an employer cannot guarantee the behaviour of all of its employees, it can, and should, limit risk by ensuring that equality and diversity training is provided to all staff and the company has effective policies and procedures in place. Complaints of harassment must be dealt with promptly, thoroughly and sensitively.

From October 2024, employers will have a mandatory duty to prevent sexual harassment in the workplace.  Employers will have to take reasonable steps to prevent sexual harassment of their employees. Furthermore, employment tribunals will have the power to uplift sexual harassment compensation by up to 25% if an employer is found to have breached the new duty to prevent sexual harassment. Therefore, employers must review their policies and procedures in advance of October 2024. For example, depending on what may be defined as the “workplace” for e-athletes, it may be necessary for E-Sports companies to ensure there is sufficient moderation of Twitch chats (as suggested by Chris Deeley, of JMW Solicitors LLP), as female e-athletes/streamers face severe “trolling” from an anonymous online audience.

To illustrate how expensive it can be to fail to prevent sexual harassment in the workplace, in January 2024 over £840,000 was awarded in compensation to a female police inspector.  Mrs R Kalam v The Chief Constable of West Midlands Police: 1301519/2021 – Judgment.

In the UK Tech sector, it has been found that women are generally offered lower remuneration than men, and 38% of BAME/non-white employees have felt discriminated against in the workplace due to their ethnicity. Due to the high salaries offered by tech companies, if employers do not have suitable prevention methods in place, there is a higher risk of discrimination claims being made, and high compensation awards as a consequence. Compensation awards in discrimination claims are “uncapped”, which means that there is no statutory maximum. Some notable awards made recently include:

1. £2,567,831.96 for disability discrimination;
2. £2,081,449.00 for sex discrimination; and
3. £452,474.00 for race discrimination.

It is also worth highlighting that in addition to the employer being held vicariously liable for the acts of an employee who commits an act of harassment and/or discrimination against a colleague, the employee who committed the acts can also be held personally liable. This means that anyone who harasses and/or discriminates against someone at work is also at risk of proceedings being issued against them personally.

Sums of much greater value may, however, be paid to employees, by way of a settlement agreement (and sometimes a supplemental or incorporated non-disclosure agreement (“NDA”)).

Such NDA agreements/clauses have been used in the past to avoid negative press attention for the employer; however, the courts in England and Wales are heavily scrutinising such NDAs to ensure they do not include a ‘gagging clause’ that infringes on workers’ rights to make public disclosures (or to ‘blow the whistle’). In 2018, the Solicitors Regulation Authority issued a warning notice to all regulated professionals with guidance on the ethical limits of NDAs and about the disciplinary sanctions available for solicitors who facilitate their abuse.

If you are an employer or employee, and you have an HR query (such as a potential disciplinary, capability or grievance matter or you would like our assistance reviewing and, where required, updating your contracts of employment and/or staff handbook), or you have a potential employment law issue (such as an unfair dismissal, harassment and/or discrimination claim/defence), you might wish to seek our advice. 

Griffin Law is a dispute resolution firm comprising innovative, proactive, tenacious and commercially-minded lawyers. We pride ourselves on our close client relationships, which are uniquely enhanced by our transparent fee guarantee and a commitment to share the risks of litigation.  For more details of our services please email justice@griffin.law or call 01732 52 59 23.

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