Sex discrimination: harassment
Kate Brittin of Lewis Silkin begins a series of articles on recent changes to the sex discrimination legislation with a look at the new definition of harassment.
Introduction
On 1 October 2005, the Sex Discrimination Act 1975 was amended to make sexual harassment a specific offence for the first time. The change was required by the amended Equal Treatment Directive (2002/73/EC) and brings the definition of sexual harassment broadly into line with the definitions of racial, sexual orientation and religion or belief harassment, which are already in force.
This article considers how sexual harassment has been viewed by the law up to now, what the new definition is and what it means in practice for employers. It also considers whether the way in which the Government has chosen to implement the new laws achieves all that it could and should have.
The law up to now
Sexual harassment has been unlawful in the UK since 1985 and the case of Porcelli v Strathclyde Regional Council [1984] IRLR 467 EAT, which held that harassment is a form of direct sex discrimination. In 1992 the European Commission published its Recommendation and Code of Practice on the protection of the dignity of women and men at work, which, though without legal force here, has been used by tribunals to identify whether a particular form of conduct constitutes sex discrimination.
The headlines of the existing law are as follows:
Sexual harassment is a form of direct sex discrimination and, as such, is unlawful only if it amounts to 'less favourable treatment' when a comparison is made with the way in which a person of the opposite sex was or would have been treated.
Sexual harassment is 'conduct of a sexual nature, or other conduct based on sex, affecting the dignity of women and men at work' that is 'unwanted, unreasonable and offensive to the recipient', and either 'creates an intimidating, hostile or humiliating work environment' for the recipient or is a reason for subjecting the recipient to anotherdetriment.
While some acts of harassment are objectively discriminatory, ie most people would view them as such, others can be discriminatory if the claimant has previously indicated that she finds something offensive, even though many people would not find it so.
The motive or intention of the alleged harasser is irrelevant.
An employer can be liable for harassment by its employees, but not harassment by third parties.
Employers have a defence if they can show that they took such steps as were reasonably practicable to prevent the harassment occurring or recurring.
The new definition
As of 1 October 2005, the Sex Discrimination Act 1975 now includes provisions outlawing two forms of harassment - one where the conduct itself is not sexual in nature, the other where it is.
Harassment
A person subjects a woman to harassment if 'on the grounds 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'.
It should be noted that harassment is unlawful only if it is 'on the grounds of' the recipient's gender.
Harassment would cover, for example, bullying that is not sexual in nature but is directed to women or affects women more than men. The Government gives the example of putting essential items on a high shelf, or refusing to help with lifting heavy articles, both of which are more likely to disadvantage women than men.
Sexual harassment
A person subjects a woman to sexual harassment if 'he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect of violating her dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her'.
Sexual harassment covers the situation where the conduct itself is of a 'sexual nature', but is not necessarily directed at one sex more than the other. No definition of 'sexual nature' is given. Examples include unwanted sexual innuendo, touching and the display of pornography. ACAS is currently working on guidance that will give further examples of this.
The amended Sex Discrimination Act 1975 will also cover the situation where a person is treated less favourably for having rejected or submitted to either form of harassment.
An employer's liability for all types of harassment will extend to employees, applicants for employment and contract workers. However, it will cover only harassment by the employer or those for whom the employer has vicarious liability. The implications of this in the context of harassment by a third party are explored below.
Where the conduct is of the kind that some people might find offensive and others might not, it will be unlawful only if 'having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect'.
The 'reasonably practical' steps defence remains unamended.
What this means in practice
In practice the changes will probably not have much impact since, in essence, they aim to put protection from sexual harassment as developed by the tribunals and courts on to a statutory footing.
However, some claims may now be easier to bring. For example, because the sexual harassment offence is committed whether or not the harassment is on the grounds of sex, the claimant in Brumfitt v Ministry of Defence and another [2005] IRLR 4 EAT might have expected a different result. In this case, a female corporal in the RAF military police was subjected to remarks of a sexual nature whilst attending a training course run by a male supervisor. The remarks were, however, directed to both the male and the female attendees. Ms Brumfitt found the comments to be offensive and humiliating and complained under the Sex Discrimination Act 1975. The employment tribunal rejected the claim, on the basis that the remarks were not made to Ms Brumfitt 'on grounds of her sex', and this decision was upheld by the Employment Appeal Tribunal.
Women in this position will now be able to argue that they have been subjected to 'conduct of a sexual nature' that violated their dignity and/or created an intimidating, hostile, degrading, humiliating, or offensive environment. It will no longer be necessary for them to show that the alleged harasser acted in a discriminatory manner, but only that he acted in a way that they found to be offensive. This should finally put an end to employers defending this kind of claim by asserting that the alleged harasser was equally unpleasant to all employees irrespective of gender.
Are the changes all they could and should be?
The Government has chosen not to follow the Directive in a couple of potentially important respects.
First, the Directive refers to the harassment offence as 'unwanted conduct related to the sex of a person'. The amended Sex Discrimination Act 1975 defines it as being 'on the grounds of her sex'. The Government's stated view is that there is no material difference between the two, that the 'on the grounds of' formulation has been used in implementing the Race Directive (2000/43/EC) and the Framework Directive (2000/78/EC), and that there should be consistency of approach.
However, there is an argument that the Equal Treatment Directive wording does not require a comparison with how a man was or would have been treated, and the new wording in the Sex Discrimination Act 1975 might. This would mean that, in a situation where the conduct is not sexual in nature, a woman claimant will have to prove that a man would have enjoyed better treatment. How much a problem this is in practice will depend in part on how widely 'conduct of a sexual nature' is interpreted. If the courts decide, for example, that viewing pornography in the workplace and using obscene language is 'conduct of a sexual nature', there will be no need for a comparison with a man, since it will be 'sexual harassment', which requires no such comparison.
Second, the biggest hole in the new law is likely to be in terms of an employer's liability for harassment of its workers by third parties. Since the rule established in the Bernard Manning case, Burton and Rhule v De Vere Hotels [1996] IRLR 596 EAT, was disapproved by the House of Lords in Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] IRLR 512 HL, employers are no longer liable under discrimination legislation simply for failing to protect their employees from harassment by a third party. In Burton the employer's treatment of two black waitresses - requiring them to serve the guests at a dinner during a racist speech by Manning - was not in itself related to their race.
Under the amended Sex Discrimination Act 1975 an employer that asked members of staff to serve at tables during a speech containing offensive sexist remarks would similarly not be liable. The employer's treatment of the employees in asking them to serve the guests could not be said to be 'on the grounds of sex', so the harassment definition would not be made out. The conduct would not fall within the definition of sexual harassment since this requires the conduct to be that of the employer or of those for whom it has vicarious liability.
Action in response to the changes
Although the changes do not radically alter the law relating to sexual harassment, employers will need to review their policies to ensure that their wording is consistent with the definitions of harassment now contained in the Sex Discrimination Act 1975.
Next week's article will look at the new definition of indirect sex discrimination.
Kate Brittin is a member of the Employment Team at Lewis Silkin (Kate.Brittin@lewissilkin.com)
Further information on Lewis Silkin can be accessed at www.lewissilkin.com
