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the 'Weinstein effect' on civil claims

19 December 2017

I doubt any of us have failed to miss the weekly disclosures concerning Mr Weinstein and the allegations made against him in the States. Nor can we avoid news of the investigations underway by the MET Police in relation to allegations made against Kevin Spacey during his time as Artistic Director at the Old Vic Theatre. The number of people coming forward and subsequent coverage in the press on the entertainment industry has clearly caused many to reflect and for some, given them the courage to come forward.

The difference in these and abuse cases we have seen widely publicised in the last decade is that these allegations are not ‘historical’ and rarely involve minors. These are claims by adults who were in employment and who were allegedly targeted during the course of their work or associations made at work.

These entertainment industry cases will ultimately raise difficult questions about 'consent' for the investigating police authority and ultimately for a civil court, should a civil claim for damages be brought.

In criminal law, consent is dealt with in the Sexual Offences Act 2003, which states; “a person consents if he agrees, by choice, and has the freedom and capacity to make that choice.”

But what about consent in a civil case? One has to look at the ‘agency’ of the claimant, particularly their lifestyle with regard to their independence as a person, the dynamics of their relationship and how they function as an adult, making choices for themselves. The cases will always be very fact specific. No two individuals or relationships will be the same.

Two 2015 cases highlight this, JL v Archbishop Bowen and the Scout Association and C v WH. In the first cases JL alleged he was groomed and sexually assaulted between the ages of 16 and 31 years. The court held JL did not consent up to the age of 18 as he was emotionally vulnerable. After he reached 18 the dynamics changed; JL moved away from home, attended university and commenced successful employment. During this period the court held JL had consented to the sexual activity.

In the second case C was a 16 year old school girl. Here the court looked in detail at the nature of the grooming and the effect on C. It concluded that she was compliant, but that this did not amount to consent.

If consent is absent, the second difficult question a civil claim will raise is under the principle of vicarious liability. Many in the entertainment industry are self-employed. Employers, or those in a position analogous to that of an employer of the alleged perpetrator will ultimately be responsible for any wrong doing in a claim for damages if a court finds the actions of the perpetrator are closely connected to their employment.

The boundaries of vicarious liability have been pushed, most recently in the cases of NA v Nottinghamshire County Council [2017], and Various Claimants v Barclays [2017] where the court determined that a bank could be fixed with vicarious liability for the sexual assaults of its independent medical expert, commissioned to carry our pre-employment medicals.

So how far can the boundaries be pushed?

What if the alleged assaults happen at a work social event organised by the employer? In the case of Waters v Commissioner of the Police of the Metropolis (1997), the employer was not held vicariously liable for a sexual assault where both the officers involved were off duty and where the assault occurred in circumstances where the male officer was a visitor to a female officer's room outside their working relationship. The Court of Appeal held the officers were in a situation no different to that which would have applied had they been social acquaintances with no work connection at all.

Finally, this brings us back to those victims who claim they were sexually assaulted or harassed during their employment, in circumstances where the power difference between them and their assailants made it difficult for them to resist or subsequently complain. The trauma that goes with a sexual assault can lead to lifelong damage for some. These cases, unlike those involving minors, could include a significant loss of earnings and pension claim, along with the loss of vocation.

So what is the Weinsten effect? What we can be sure of is that it shines a spotlight on unacceptable behaviour. This is emboldening many to come forward and raise concerns or allegations. We all need to be clear about what is acceptable. All workplaces (whether permanent, agile or mobile) need to engender cultures that ensure their organisations do not turn a blind eye to conduct which is unacceptable. Failure to do so will come at a significant personal and financial cost, both to the employee raising the allegation and ultimately, the employer.

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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