You’ve probably heard me talk a lot about sexual harassment recently.  Other than the ridiculous rhetoric from certain quarters about the dangers of DEI (sigh…), it’s the most consistent employment law topic that crops up month in, month out and is something that we continue to discuss with clients on an almost daily basis, particularly given the recent new UK regulations in this area.

I’ve therefore found the whole Blake Lively / Justin Baldoni saga in recent weeks super interesting.  The legal proceedings that relate to this story are subject to US law but the sorts of allegations that have been raised could easily crop up on a UK TV or Film production too (in fact I’ve seen cases that aren’t dissimilar, although usually the arguments don’t play out in public quite this much!).

There’s a long history to wade through regarding this particular dispute – this recent BBC article provides a helpful summary.  It is the various ‘evidence’ that has come out recently though which, if analysed from a UK law perspective, provides a helpful insight into the significant difficulties businesses face with these sorts of cases given the legal definition for sexual harassment within the UK Equality Act.

As part of Baldoni’s defence and counter lawsuit against Lively, Baldoni’s lawyers and ‘PR’ team have published materials online designed to disprove and discredit Lively’s sexual harassment allegations.  Of most note is a series of video outtakes of a scene from ‘It Ends With Us’ (the film production to which the allegations all relate) that Baldoni’s representatives claim clearly show him “behaving well within the scope of the scene with mutual respect and professionalism”.   More recently, his team has published a timeline of events related to the lawsuits which includes copies of private text messages between Baldoni and Lively that were sent during production.  It is inferred that these messages evidence  that the working relationship between the pair was positive, that there was some ‘playful’ banter on both sides and that they also show Baldoni again demonstrating appropriate sensitivity and professionalism during discussions related to the creative aspects of intimate scenes.

If we analyse this evidence through a UK law lens there would potentially be difficulties for both sides if this played out in an employment tribunal. 

Sexual harassment in the UK is, in short, “unwanted conduct of a sexual nature which has the purpose or effect of violating a person’s dignity or creating a hostile, intimidating etc environment”.  With this in mind, it’s fairly obvious to see how Baldoni would defend such an action under UK law.  His evidence is designed to show that the conduct in question was not ‘unwanted’ – Lively was not evidently distressed or uncomfortable in the video that has been released and the text messages suggest she is a willing and active participant in the (arguably flirty) late-night dialogue between the two.

However, anyone who has had to defend a sexual harassment case in the UK will know the difficulties with placing all your eggs in this basket.

One of the most significant things about the UK harassment definition is that the conduct in question does not need to intentionally harass – a claim can be equally valid if it has that particular effect on another person and it isn’t always straightforward to prove that particular behaviours were not ‘unwanted’.  Lively’s team is clearly thinking along these lines, with their immediate response to the video stating “Any woman who has been inappropriately touched in the workplace will recognize Ms. Lively’s discomfort.  They will recognize her attempts at levity to try and deflect the unwanted touching.  No woman should have to take defensive measures to avoid being touched by their employer without their consent.”  They also argued that every moment of the video footage was improvised by Baldoni with no discussion or consent in advance, or intimacy coordinator present.

These are, in my view, arguments that could certainly sway a tribunal.

However, based on what we know so far, a UK hearing on these facts would be difficult to call and like many tribunal cases it would likely depend greatly on how each of Baldoni and Lively presented as a witness at the final hearing and where the sympathy lay.  You therefore have to wonder how much merit there is for either side in having this play out in public.

What all of this hopefully shows though is that sexual harassment cases are often not straightforward.  We hear about some very horrible and blatant cases in the media fairly regularly but many are far more subtle, with there being genuine scope for debate as to whether sexual harassment has actually been committed.  This naturally is a very material issue for employers, even very responsible ones!

I will be keeping a close eye on this one and will be very interested to see how it all plays out.

Seth Roe is head of Wiggin’s employment team which specialises in media employment law. We have a wealth of experience advising Film and TV clients on all types of employment and immigration work, working proactively and collaboratively with HR teams, managers and in-house lawyers. If you have an employment law query or want to discuss how we can help make sure your sexual harassment procedures and risk assessments are up to scratch, please get in touch.