In March 2007 the High Court ruled that the Sex Discrimination Act 1975 (SDA) did not correctly implement the EC Equal Treatment Directive (Section 4A), as it referred to harassment “on the grounds of” a woman’s sex, rather than “related to” a person’s sex (Equal Opportunities Commission v Secretary of State for Trade and Industry  EWHC 483). The changes to the SDA are expected to come in to force in the first half of this year, yet the exact details of the alterations and their possible implications are so far unclear.
Q What impact is the changed definition likely to have?
Thomas Ince (partner, Reed Smith Richards Butler): In practice, this means the government needs to introduce regulations amending the SDA to allow employees to bring claims for harassment on the grounds of sex by third parties, such as customers or suppliers. It also means the SDA should permit claims where a woman is offended by conduct aimed at another person – perhaps a man – which is related to sex.
Sasha Scott (managing director, Inclusive Diversity consultancy): The words “related to sex” are pretty wide. It could, therefore, mean that comments previously considered to be harmless banter could now be caught by the proposed amendments. But perhaps of even greater impact will be the fact that comments directed at other colleagues will allow a female employee to make a complaint of harassment, in circumstances where they violate her dignity or create an intimidating, offensive environment for her.
Q Who is likely to be most affected?
Thomas Ince This will have serious implications for some sectors, such as the hospitality industry, where people regularly deal with clients and customers. Employers have to be very careful about any complaints that come from employees about third-party harassment and need to be fully aware of what they should do to protect themselves.
Sasha Scott The widening of the definition will have significant implications for organisations across the board, particularly where a culture of office banter is commonplace. Also, the liability for the acts of clients and suppliers will be hugely significant for a number of client-facing industries, whether that’s the catering and retail trades or less obvious client-facing sectors such as accountancy, law, banking, insurance and manufacturing.
Q What should firms do to prepare?
Thomas Ince This can only be addressed through training managers who will need to train staff on how to recognise and deal with these issues. HR practitioners will also need to change employment policies to make it clear that employees being harassed should make a complaint and that these will be properly dealt with. Companies will have to think about changing their policies on equal opportunities, dignity at work and in areas such as bullying and harassment. All employers should take heed of this change in the law because they may be found vicariously liable if it can be proved they knowingly failed to act to protect a member of staff from repeated harassment from a third party.
Sasha Scott Perhaps the most important advice is to train staff and particularly managers in leadership skills and diversity-awareness issues. Prevention is always better than cure and properly targeted training, tailored to an individual firm’s needs goes a long way to ensuring the wrong type of behaviour is nipped in the bud. In the short term, companies need to urgently look at altering their policies and provide training for managers and supervisors. They’ll also need to take swift action on their customer contracts and policies.
Q What other steps can employers take?
Thomas Ince Employers should also include dignity clauses within their contracts with suppliers and other third parties to make the supplier or other party contractually obliged to treat the company’s employees with respect and dignity. If the supplier then fails to do that, the supplier will be in breach of contract. The clause could also contain an obligation by the supplier to indemnify the employer for any compensation it has to pay, and any costs incurred which arise because of these types of harassment claims.
Sasha Scott As well as reviewing policies and providing training for managers, it’s a good idea to consider implementing a diversity training programme across the board as, when it’s properly targeted, it can go a long way to preventing claims. Given the increase in the ambition of the legislation, there has never been a more pertinent time to invest in such preventative measures.
Q What other important changes are likely to appear?
Thomas Ince The really sticky issue concerns maternity leave as nobody really knows how far the regulations need to go to comply with the High Court’s decision. Currently Section 6A of the SDA limits the claims that can be made for sex discrimination during additional maternity leave. But the big question is whether the High Court decision means there can no longer be a distinction between rights available to women during ordinary maternity leave and additional maternity leave – in effect whether employees should receive contractual benefits throughout the whole of the maternity leave period. It may have considerable cost implications, so rather than make provision now, it is better to just wait and see what the regulations say.
Sasha Scott It is not clear how extensive the regulations will need to be to comply with the High Court decision on maternity leave. My advice would be to keep a close eye on the developments surrounding maternity leave as they arise but to do nothing for now until the extent of the changes become apparent.
Despite a wealth of legislation and 50 years of progress, the UK workplace is still sharply divided:
- Six out of 10 workers in the private sector are male, while women account for 65% of public sector workers.
- Sectors with the highest proportion of jobs held by women:
- Education, health and public administration (70%)
- Distribution, hotels and catering (51%)
- Sectors with the lowest proportion of jobs held by women:
- Construction (10%)
- Energy and water (24%)
- Transport and communications (24%)
- Occupations with the highest proportion of jobs held by women:
- Personal services (83%)
- Admin and secretarial (78%)
- Sales and customer service (69%)
- Occupations with the lowest proportion of jobs held by women:
- Skilled trades (8%)
- Process plant and machine operatives (14%)
- Managers and senior officials (35%)
Source: Opportunity Now/Office for National Statistics
Sarah Williams-Gardener, director, Opportunity Now
The amendments are likely to mean that employers need to extend benefits such as holiday pay and medical insurance for the full 12 months of maternity leave as opposed to the current six-month timescale. We would encourage employers to embrace these changes and look at the bigger picture. Attrition can be extremely expensive as replacing a member of staff can cost an average of £20,000 in terms of recruitment costs, management time and lost productivity. We actively encourage organisations to retain and grow their women talent and hope the legislative changes will be embraced as part of a wider commitment to the retention of women.
Bettina Bender, partner, CM Murray law firm
This is more a case of niggles within the wording of the legislation being corrected. In cases of harassment the existing regulations say it must be proved the harassment was “on the grounds” of a person’s sex, whereas it should be “related to” a person’s sex. It may sound like a small change but in specific cases it could make a huge difference as using the term “on the grounds” implies a higher test. Saying “related to” is a test that is likely to be easier to satisfy, so it may mean it makes it easier for someone to make a case.
Emma Cullen, spokeswoman, Commision for Equality and Human Rights
The latest draft regulations, which we believe will be called the Sex Discrimination (Harassment and Pregnancy and Maternity Leave) (Amendment) Regulations 2007, have not yet been sent to us, though we do expect them in a matter of weeks. We know that the definition of harassment will have to be extended and there may be provision for making an employer liable for harassment by a third party such as a client or customer. In relation to pregnancy and maternity, a woman will no longer have to compare her treatment with a non-pregnant woman. In particular, the distinction between the terms and conditions of employment that continue to apply during ordinary maternity leave and those continuing to apply during additional maternity leave will probably be removed, with far reaching implications.”
Alyson Malach, director, equality and diversity, Inclusive Learning
Employers must address the issue of third-party harassment in their policies and employee communications, and develop a proactive strategy in consultation with all interested parties. It’s also key to explain exactly what third-party harassment is to your employees as part of your equality training. Overall, I would suggest that a proactive approach is advisable. Almost like succession planning, companies need to consult staff on this issue, explaining that there are proposed changes and the company would like to explore how best to address the issues that may arise.