President Bush’s re-election will no doubt please his fellow Republican Arnold Schwarzenegger, the governor of California. The muscled actor, with a string of 1980s blockbuster films to his name, is continuing California’s progressive employment law tradition. On 29 September, Schwarzenegger signed the Californian Sexual Harassment Training Law which requires employers with 50 or more employees to provide a minimum of two hours’ sexual harassment training and education to managers. This includes introductory training followed by training and education once every two years.
With the increase in sexual harassment and discrimination claims in the UK, there is a strong case for introducing a similar training requirement here as part of our extensive anti-discrimination legislation.
The argument becomes stronger if you look at the statistics. Sexual discrimination claims alone have increased by 41 per cent in the past two years. More than a quarter of all claims settled last year resulted in final payouts in excess of 10,000, with the maximum recorded claim in the past 12 months being 504,433.
These figures – from the ETS Annual Report, 2003-04 – do not account for the increasing number of cases which settle out of court, usually for high stakes and to avoid bad publicity, and often against banks. For instance, Morgan Stanley, Nomura and Merrill Lynch have all had substantial claims this year. The removal of the upper limits to compensation, as well as the domino effect of more high-powered women bringing claims to tribunal, are having obvious effects.
Tribunals are obliged to find that discrimination has occurred if the employee can prove that the employer has committed an act of discrimination, and the employer is unable to prove this is not the case. The employer faces the burden of proving that it did not commit a discriminatory act or is not to be treated as having committed that act.
The anti-discrimination laws all provide that any discriminatory act carried out by a person during the course of their employment is treated as being done by the employer. This is the case, whether or not the employer had any knowledge of the particular act in question and, as a result, an employer can be liable for one employee who harasses another.
It is a good defence to a complaint of harassment that the employer took reasonably practicable steps to prevent the employee from doing that or a similar act. Employers need to show that they have made a real effort to stamp out this kind of behaviour. The law then allows the employer to argue that even if the harassment occurred, it should not be attributed to the employer.
With this in mind, employment lawyers have long advocated that employers in the UK should introduce equal opportunity policies, which are backed up with sufficient training for their staff and that this training should be repeated at regular intervals.
Training staff to avoid harassment in the first place is crucial, but it is also becoming increasingly important for managers to learn how to handle complaints once discrimination has occurred. The new compulsory statutory grievance procedures will put even greater pressure on managers to handle these types of complaints correctly as employees are compelled to use their employers’ internal procedures before making a tribunal claim.
Surprisingly, given the risks and repeated advice from lawyers, the number of UK employers who introduce training on these issues seems to be low. There are undoubtedly many reputable employers who provide training, but how many of them repeat it regularly?
In California, the historic position was similar to ours in that its sex discrimination law allowed an employer to demonstrate that it took reasonable steps to ‘prevent and correct’ sexual harassment in the workplace or, that the victim unreasonably failed to use the preventative and corrective measures that had been provided and which would have prevented some if not all the harm suffered.
However, the fact is that an optional defence does not seem to have encouraged enough UK and US employers to provide this training. It will therefore be interesting to see whether the Californian sexual harassment training law has a noticeable effect on the amount and success rate of claims brought. While some may complain about the ‘Nanny state’, mandatory training and education could prove cheaper for employers in the long run.
By Nicola Walker, partner, Hogan & Hartson