Harassment

Q Does the Sex Discrimination Act 1975 protect against harassment?

A At present, the Sex Discrimination Act 1975 provides no express prohibition of sexual harassment. However, the UK courts have accepted the concept of harassment as a form of direct discrimination (see Porcelli v Strathclyde Regional Council [1984] IRLR 467 EAT). In such cases, the harassment must amount to a detriment, and there must also be a comparator, whether real or hypothetical. Claims of racial harassment on grounds of colour or nationality must also be brought on this basis.

Q What is the position with regard to the other discrimination legislation?

A The Race Relations Act 1976 contains a specific provision prohibiting harassment on the grounds of race or ethnic or national origin. It defines harassment as unwanted conduct that has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Conduct will be regarded as having this effect only if, taking all the circumstances into account, particularly the claimant’s perception of it, it should reasonably be considered as doing so.

Equivalent definitions can also be found in the new rules on sexual orientation and religion or belief discrimination. The Disability Discrimination Act 1995 contains a similar definition, although the unwanted conduct must be for a ‘reason which relates to the disabled person’s disability’, rather than on the more general ‘grounds of disability’.

Q Does the government propose to extend this definition to the sex discrimination legislation?

A Yes. The government intends to amend the sex discrimination legislation by means of the Equal Opportunities (Sex Discrimination) Regulations 2005, expected to come into force on 1 October 2005. The same definition of harassment will be adopted for harassment on the grounds of a person’s sex. Harassment due to a person’s gender reassignment, as well as harassment due to gender, will be covered.

In addition, the notion of sexual harassment, as opposed to sex-based harassment, is also recognised. This will cover conduct of a sexual nature, meaning that the defence in some cases that there is no discrimination because both men and women may be offended by, for example, sexual language or the display of pin-ups, will no longer be available. The draft regulations avoid specifying exactly what will constitute conduct of a sexual nature, but Acas will provide practical guidance in due course, including examples, to clarify what the new law will mean in practice.

Q Can an employer be liable for the harassment of an employee by other staff?

A An employer will be liable for harassment by its employees in the course of their employment even if it was unaware of it at the time, unless it has taken reasonable steps to prevent its staff from harassing others.

At a minimum, to have a successful reasonable steps defence, an employer is likely to have to be able to show that it has a harassment policy in place, and that it has taken effective measures to ensure that employees are aware of, and understand, the policy. This is likely to require some staff training.

Q In cases of harassment on grounds of sexual orientation, does it matter if the harassers are mistaken about their victim’s sexuality?

A No. The harassment can relate to a person’s actual or perceived sexual orientation, even where the perception is wrong – for example, where an individual is harassed because they are perceived to be gay, but are in fact heterosexual.

The individual would not be required to disclose their actual sexual orientation to bring a claim. It will be enough that they have been harassed because of assumptions made about their sexual orientation.