Third-party liability for sexual harassment
Consultant editor
The Sex Discrimination Act 1975 (Amendment) Regulations 2008 (SI 2008/656) have been published and will come into force on 6 April 2008. They make a number of changes to sex discrimination law following the judicial review brought by the Equal Opportunities Commission (EOC) (now replaced by the Equality and Human Rights Commission) arguing that the current law does not fully comply with the Equal Treatment Directive (EC/2002/73) (Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] IRLR 327).
Some of the changes are technical and will make little practical difference - for example, the need for a comparator in cases of discrimination on grounds of pregnancy or maternity is removed. Of more importance is a change to the treatment of non-remuneration-based terms and conditions during maternity leave. For women with an expected week of childbirth beginning on or after 5 October 2008 these terms will continue to apply during additional as well as ordinary maternity leave. Amendments will be made to the Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312) in due course.
Important changes are also made to the law relating to sexual harassment. The widening of the harassment provisions to cover harassment "related to [the claimant's] sex or that of another person" rather than harassment "on the grounds of her sex" is significant - and necessary since the EOC persuaded the High Court in the judicial review proceedings that the current definition could bear only a narrow interpretation. However, the most important change is arguably the extension of sexual harassment to cover the actions of third parties not employed by the employer.
Third-party liability gained currency in Burton and Rhule v De Vere Hotels [1996] IRLR 596, in which the EAT held that the employer of two waitresses subjected to racist and sexist abuse by the comedian Bernard Manning was liable for the harassment that they had suffered. The decision was, however, disapproved by the House of Lords in Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] IRLR 512 when it held that an employer is liable for subjecting an employee to harassment by third parties only if the employer itself acted on discriminatory grounds.
The new Regulations explicitly state that an employer shall be liable where an act of harassment is committed by a third party - ie neither the employer nor anyone employed by it - and the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from acting in that way.
This amounts to a duty of care on the employer to ensure that third parties do not engage in acts of harassment. However, the duty does not apply in all circumstances. The employer will be liable for third-party harassment only if it knows that the employee has been subjected to harassment by a third party (not necessarily the same one) on a least two previous occasions. There is no limitation on when the previous incidents should have occurred.
It is a pity that these Regulations do not have the same scope for amendment as primary legislation, because this provision needs some work. Many allegations of harassment are disputed by the employer or borderline. Employers sued on the basis of third-party liability will presumably be able to argue that previous incidents did not amount to harassment and that liability does not arise.
More problematically, this provision will create two tiers of protection for employees. Suppose there is a rogue contractor on site who routinely harasses employees. Why should the employer have a duty towards only those employees who have been harassed twice before? Why is the level of the employer's duty based on the personal history of the employee, rather than on an appraisal of the risk posed by the third party in question?
At the risk of confirming my reputation as an employment law grouch in saying so, this just won't do. If the government wants to introduce this new basis for sexual harassment - and the High Court in the judicial review proceedings held that it was not obliged to do so - the least employers can expect is a proper debate about when the liability will arise and a properly thought-through provision making the responsibilities of both employer and employee clear. Not long ago the government was talking about simplifying employment law; these Regulations needlessly complicate it.
perspective@irsonline.co.uk
