Harassment: changes to the Sex Discrimination Act

Sarah-Marie Williams and Tom Kelly of Clyde & Co begin a series of articles on harassment with an overview of the recent changes to the Sex Discrimination Act 1975.

Introduction

The Sex Discrimination Act 1975 (Amendment) Regulations 2008 came into force on 6 April 2008. The purpose of the Regulations is to bring the Sex Discrimination Act 1975 into line with the Equal Treatment Directive (2002/73/EC). The need for this arose out of Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] IRLR 327 HC, in which the High Court ruled that the Directive had not been adequately implemented by the Employment Equality (Sex Discrimination) Regulations 2005. The 2008 Regulations are intended to remedy the deficiencies of the 2005 Regulations. The 2008 Regulations introduce two main changes to the law on harassment within the Sex Discrimination Act 1975.

Amended definition of harassment

Prior to the introduction of the 2008 Regulations, s.4A(1)(a) of the Sex Discrimination Act 1975 stated that "a person subjects a woman to harassment if on the ground of her sex, he engages in unwanted conduct that has the purpose or effect of violating her dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her". This is sex-based harassment and is distinct from sexual harassment, which is defined in s.4A(1)(b) of the 1975 Act as "unwanted verbal, non-verbal or physical conduct of a sexual nature" that has the same purpose or effect. (Note that the wording in the Sex Discrimination Act 1975 refers to harassment against women. However, the provisions apply equally to harassment against men.)

This meant that, for a claim of sex-based harassment to be upheld, the harasser's reasons for his or her conduct had to be examined. It was open to an employer to defend a claim by maintaining that the harasser's motive was unrelated to the complainant's sex. It could be argued, for example, that he or she simply did not like the complainant.

From 6 April 2008, the 2008 Regulations changed the definition in relation to sex-based harassment to "unwanted conduct that is related to [the complainant's] sex or that of another person" that has necessary purpose or effect. This wider definition no longer requires an employment tribunal to look at the grounds on which a harasser based his or her behaviour, but merely requires the behaviour to be related to the complainant's sex or the sex of another person, to be treated as harassment.

This has two effects. The first is that it removes the need to look at what caused the harassment. It is enough that it was related in some way to the complainant's sex (or the sex of another person). For example, a manager following a female worker into the ladies' toilets may not be conduct on the grounds of sex if the motive is to shout at her. However it could be conduct related to sex (because she has been followed into the ladies' toilets). Similarly, a male employee's behaviour that takes advantage of a female employee's lack of height or strength may not constitute conduct on the grounds of sex, if the motive is to put objects out of reach or to refuse to help lift them because he does not like the female employee. However, it may well be conduct related to sex because, on average, women are shorter and/or weaker than men.

The second effect of the change results from the extension of the definition to include conduct related to the sex "of another person". It is now possible for someone to bring a claim under the Sex Discrimination Act 1975 where he or she has not personally been subjected to the unwanted conduct but the effect of it is that it, for example, creates an offensive environment for him or her. For example, a male employee who witnessed his manager calling a female colleague a "bimbo" could now bring a claim if he felt harassed as a result.

Liability for third-party harassment

Previously the Sex Discrimination Act 1975 did not expressly impose any liability on employers for failing to protect employees from sex-based or sexual harassment by third parties, although the Government argued, unsuccessfully, in Equal Opportunities Commission that such liability was implicit in the legislation.

The 2008 Regulations insert a new section (s.6(2B)) into the Sex Discrimination Act 1975. This imposes a new liability on employers where a third party (ie someone other than the employer or one of its employees) subjects an employee to harassment. However, the employer is liable only where:

• an individual is subjected to harassment in the course of his or her employment;
• the employer has failed to take reasonably practicable steps to prevent the harassment; and
• the employer knows that the individual has been subjected to harassment by a third party in the course of employment on at least two other occasions.

With regard to the final point, it does not matter whether the third party is the same or a different person on each occasion.

The new provisions provide a particular challenge to employers of employees who have a high level of exposure to third parties in the course of their employment, such as those working in restaurants or hotels.

While the new provisions impose a positive duty on employers to protect their employees from harassment by third parties, an employer can avoid liability if it can show that it took all reasonably practicable steps to prevent such harassment occurring. This could include confronting the third party about the alleged harassment. In addition, employers will not be liable for third-party harassment of which they have no knowledge, nor will they be liable for one-off instances of harassment or conduct beyond their control. However, if an employer is made aware that an employee has been subjected to third-party harassment on at least two previous occasions and does nothing to protect that employee, perhaps out of unwillingness to confront or offend the client, it will be liable to harassment claims.

The new provisions do not specify a time limit within which the previous incidents of harassment must have occurred for the employer to be liable. Employers are advised to revise harassment policies to include harassment by third parties and to include a procedure to facilitate the notification and reporting of harassment so that steps can be taken to avoid its recurrence.

Conclusion

The wording of the 2008 Regulations on sex-based harassment is much closer to the wording of the Equal Treatment Directive, which defines harassment as "unwanted conduct related to the sex of a person", and appears to succeed in bringing UK law into line with the Directive in this regard. The effect of the changes is to widen the scope for employees to make claims for harassment that is sex based. The new definition requiring that conduct need be only "related to" sex is associative rather than causative, so that behaviour that is linkable to sex, rather than because of sex can constitute harassment. Removing the consideration of motivation will make it easier for complainants to establish claims for harassment. The 2008 Regulations also make it easier for individuals who have not personally been subjected to the unwanted conduct to bring claims where the harassment was in fact directed at another person.

The addition of a duty to protect employees from harassment by third parties could lead to greater challenges for employers, particularly in industries where employees have extensive contact with customers or the public, although this is qualified by the requirement for the employer to have known of two previous instances of harassment by a third party before such liability arises.

Next week's topic of the week article will be a case study on harassment and will be published on 12 May.

Sarah-Marie Williams (sarah-marie.williams@clydeco.com) is a solicitor and Tom Kelly (tom.kelly@clydeco.com) a trainee solicitor at Clyde & Co.

Further information on Clyde & Co can be accessed at www.clydeco.com