Q&A: Sexual harassment changes to watch out for

Q Which legislation has been amended and why?

A The Sex Discrimination Act 1975 has been amended. The need for the amendment stems from Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] IRLR 327 HC, in which the High Court held that the Equal Treatment Directive (2002/73/EC) had not been adequately implemented by the Employment Equality (Sex Discrimination) Regulations 2005. To address the necessary changes, the Sex Discrimination Act 1975 (Amendment) Regulations 2008 were laid before Parliament in March 2008 and came into force on 6 April 2008. They make a number of changes to the Sex Discrimination Act 1975, including changes to the provisions relating to harassment.

Q What are the changes in respect of harassment?

A There are two changes, namely: an amended definition of sex-based harassment and a new liability on employers for harassment of employees by third parties.

Q Does the revised definition cover a wider range of conduct than the previous wording?

A Yes. It is also closer to the wording of the directive, which defines harassment as “unwanted conduct related to the sex of a person”. Previously, the reason for the harasser’s conduct had to be examined in claims of sex-based harassment. Following the amendment by the 2008 regulations, the definition of harassment no longer requires an employment tribunal to look at the grounds on which a harasser based his or her behaviour. Instead, it merely requires the behaviour to be related to the complainant’s sex or the sex of another person.

Q Can a witness to sex-based harassment bring a claim?

A Yes. As a result of the amendment to the 1975 Act, where a person has not personally been subjected to the unwanted conduct, but the effect of it is that it creates “an intimidating, hostile, degrading, humiliating or offensive environment” for him or her, the individual can bring a claim under the Act. This is because the new definition extends to unwanted conduct that is related to the sex “of another person”.

Q Does a witness have to be the same sex as the person subjected to the conduct to be able to bring a claim?

A No. The new definition of sex-based harassment refers to unwanted conduct that is “related to her sex or that of another person”. Therefore conduct that creates, for example, an intimidating environment for any person and that is directed at either sex, is now covered by the 1975 Act, and may be the subject of claims by men or women.

Q What has changed in relation to third-party harassment liability?

A The 2008 regulations impose a liability on employers for harassment of employees by third parties. However, an employer is liable only where:

  • a third party subjects an individual to harassment in the course of their employment
  • the employer has failed to take reasonably practicable steps to prevent the third party from doing so
  • the employer knows that the individual has been subject to harassment by a third party in the course of employment on at least two other occasions.

Q Is it necessary for the harassment to be by the same third party on each occasion, for the employer to be liable?

A No. It is irrelevant whether the third party is the same or a different person on each occasion. Provided that the rest of the statutory requirements are fulfilled, the employer will be liable even if the previous third-party harassment was perpetrated by different people.

Q What action should employers take to reduce liability in respect of third-party harassment?

A If an employer knows that an employee has been subjected to harassment by a third party or parties on at least two previous occasions, but has failed to take reasonably practicable steps to prevent the most recent incident of harassment, it will be liable under the 2008 regulations. The steps that the employer should take depend on the circumstances. However, the employer should, as a minimum, confront the third-party harasser. The employer might also address the issue of the employee’s involvement with that third party and ensure that they are accompanied in any future dealings with them.

Employers should ensure that harassment policies are updated to reflect the changes brought about by the 2008 regulations, and consider introducing a reporting and notification procedure for third-party harassment.

Q Does the change to the definition of harassment extend to other types of anti-discrimination legislation?

A The purpose of the 2008 regulations was to bring sex discrimination legislation in the UK in line with the Equal Treatment Directive (2002/73/EC) following the Equal Opportunities Commission case. The European directives in respect of the other strands of anti-discrimination legislation contain similar wording to the Equal Treatment Directive, namely prohibiting harassment “related to” relevant characteristics such as age or religion.

At present, UK law (other than in respect of sex discrimination) is not consistent with European law in that it prohibits harassment “on the grounds of”, for example, race, religion or sexual orientation. Thus, it seems inevitable that the law on harassment in respect of the other strands of anti-discrimination legislation will follow the same pattern, and the introduction of new legislation to address this would be expected. It should be noted that English v Thomas Sanderson Blinds Ltd [2008] IRLR 342 EAT has been referred to the Court of Appeal for a decision in respect of sexual orientation and the disparity between UK law and the relevant European directive. Therefore the pressure to amend the legislation has increased.

Sarah-Marie Williams is a solicitor at Clyde & Co

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