The Sex Discrimination Act - Update

The Sex Discrimination Act has been around since 1975 and since then employers have been potentially liable for acts of sex discrimination committed by their employees against other employees.

From 6 April 2008 that potential liability is extended to acts of harassment under the Sex Discrimination Act carried out by virtually anyone, where the offensive behaviour occurs in the course of employment. This can include customers, visitors, contractors and members of the public.

Regulation 4 of the Sex Discrimination Act 1975 (Amendment) Regulations 2008 is headed Liability of employers for failing to protect employees from third party harassment. It goes on to say that an employer is to be treated as having subjected a woman to harassment (it applies equally to a man) if a third party subjects the woman to harassment in the course of her employment. A third party is defined as a person other than the employer or another employee.

There is, however, some protection from the scenario where an employer ends up in a Tribunal in circumstances where they had no prior knowledge and were in no position to take any preventative action. The employer is only liable, under the legislation, where the employer knows that the employee has been subject to harassment on at least two other occasions by a third party and can only be treated as having carried out the harassment if it has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. It is worth noting that there is no requirement that it is the same third party each time.   

What reasonably practicable steps boil down to remains to be seen. Where it's employee to employee harassment, as already covered by the legislation for many years, case law has found that a vigorously enforced and well-publicised Equal Opportunities policy can discharge the employer's responsibility. The obvious problem is that, although you can get your own employees in for training and require them to sign a contract agreeing to abide by your equal opportunities or anti-harassment or dignity at work policy, you would be hard pressed to get customers, contractors or visitors to follow suit. Case law, as it develops, may provide some guidance. In the meantime, it's going to be a question of doing what fits the circumstances, depending on the role of the employee and the status of the person or people at the source of the harassment. Putting signs up in shops asking for the dignity of staff to be respected, writing to the employers of visitors or contractors who are alleged to have behaved inappropriately, speaking directly to individual customers and asking the harassed employee what they would like you to do to make them feel safe, are all potential steps of prevention.

The Explanatory Memorandum prepared by the Government Equalities Office to accompany the Regulations does not anticipate significant changes in practice. Many employers are already aware of the need to prevent their employees from acts of harassment, there are obvious existing vulnerabilities under employers' duty of care and the potential for a constructive dismissal claim where a harassed employee is not afforded protection.   

Harassment under the Sex Discrimination Act includes both sex harassment (harassment which is not of a sexual nature but is related to gender) and sexual harassment, (which is harassment of a sexual nature) and also covers a person who has undergone, or is undergoing or intends to undergo, gender reassignment. It is defined in all instances as unwanted conduct that has the purpose or effect of violating a person's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment and applies equally to men and women.