Conflicting approaches to judging sexual harassment claims continue to confuse employers and employees, as recent rulings in the Employment Appeal tribunal (EAT) show. But there may be light at the end of the tunnel with a new free-standing definition of sexual harassment due to come into force later this year.
Currently a claimant has to show that he or she was treated less favourably, in comparison with the way a person of the opposite sex was, or would have been, treated in the same situation.
In Brumfitt v Ministry of Defence  IRLR 4, Ms Brumfitt attended a training course at which her male supervisor made substantial numbers of offensive, obscene remarks which were directed at both male and female personnel.
It was acknowledged that Brumfitt found this humiliating to her as a woman and that such behaviour was more likely to offend women than men.
The EAT ruled that she had not been treated less favourably because both men and women had been required to attend the course and both had been on the receiving end of the remarks.
The EAT ruled that if a man uses offensive words of a sexual nature in conversation with a woman, this does not constitute discrimination if it can be shown that he would have made the same remarks to a man in a comparable situation.
A more purposeful approach is to recognise that, while women and men may be treated in exactly the same way, this may still amount to less favourable treatment of women if that behaviour is more likely to humiliate women than men.
A far less restrictive approach to the comparator issue was adopted by the EAT in Moonsar v Fiveways Express Transport Ltd  IRLR 9.
Mrs Moonsar worked alongside male members of staff who, on three occasions, downloaded pornographic images on to a screen in the room where they were all working.
Although the images were not circulated to her she worked in close proximity and was aware of the event and felt it undermined her dignity at work.
Moonsar argued that, while the ‘treatment’ of a male comparator may be identical, the use of pornography in the presence of a woman is less favourable treatment than in the presence of a man.
The EAT ruled that, viewed objectively, the behaviour of the male members of staff clearly could offend a female employee working in a close environment and would be regarded as degrading or offensive to an employee as a woman.
A public consultation on draft regulations implementing amendments to the Equal Treatment Directive will be launched in spring 2005 with a view to regulations coming into force on 1 October. This will define harassment as:
- Sex-based harassment – where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment.
- Sexual harassment – where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.
Claimants will only have to show that the conduct complained of did result in one or more of the negative outcomes described.
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Makbool Javaid, partner, DLA Piper Rudnick Gray Cary UK LLP