Sex Discrimination

Employment law is increasingly becoming a minefield for employers with employees’ rights and employers’ duties at an all time high.

Employers have to be ever more certain that their policies in respect of employees and employment standards generally are robust and up to date. One common area of complaint which has undergone a recent update is sexual harassment.

On 1 October 2005, the Sex Discrimination Act 1975 was amended which made sexual harassment a specific offence for the first time and brings it broadly in line with the pre-existing racial, sexual orientation and religious harassment.

Sexual harassment is defined as 'conduct of a sexual nature, or other conduct based on sex, affecting the dignity of women and men at work' that is 'unwanted, unreasonable and offensive to the recipient', and either 'creates an intimidating, hostile or humiliating work environment' for the recipient.

The motive or intention of the harasser is irrelevant and an employer can be liable for harassment by its own employees, but not harassment by third parties. Employers do however have a defence if they can demonstrate that they took such steps as were reasonably practicable to prevent the harassment occurring or recurring (as the case maybe).

The amendment to the Sex Discrimination Act 1975 creates two distinct forms of harassment – one where the conduct itself is not sexual in nature, the other where it is.

In respect of the first type of harassment it is only unlawful if it is made 'on the grounds of' the recipient's gender. This would cover, for example, bullying that is not sexual in nature but is directed to women or affects women more than men.

The second type, being sexual harassment, covers the situation where the conduct itself is of a 'sexual nature', but is not necessarily directed at one sex more than the other. Examples include unwanted sexual innuendo, touching and the display of pornography.

The amended Sex Discrimination Act 1975 will also cover the situation where a person is treated less favourably for having rejected or submitted to either form of harassment.

An employer's liability for all types of harassment will extend to employees, applicants for employment and contract workers. However, it will cover only harassment by the employer or those for whom the employer has vicarious liability (which include all of its employees).

The new legislation does not alter the principle in respect of an employer's liability for harassment of its workers by third parties. Since the rule established in the Bernard Manning case was disapproved, employers are no longer liable under discrimination legislation simply for failing to protect their employees from harassment by a third party. In that case the employer's treatment of two black waitresses, who were required to continue to serve guests during a racist stand up routine by Manning, was not in itself related to their race and was not racial harassment by the employer.

Under the amended Sex Discrimination Act an employer who asked its staff to serve tables during a speech containing offensive sexist remarks would similarly not be liable. The employer's treatment of the employees in asking them to serve the guests could not be said to be 'on the grounds of sex', so the harassment definition would not be made out. Similarly the conduct would not fall within the definition of sexual harassment since the comments would be made by a third party for whom the employer is not vicariously liable.

Employers should review their policies to ensure that their wording is consistent with the definitions of harassment now contained in the Sex Discrimination Act 1975.