UK: Sex Discrimination – Further Changes On The Horizon

Last Updated: 10 April 2008
Article by Sarah Houston and Edward Benson

Amendments to the Sex Discrimination Act 1975 ("SDA") came into force on 6 April 2008. Amongst the changes are amendments to the provisions on sexual harassment which are generating some concerns in the press. These concerns relate to the extent to which employers may become liable for the acts not only of their employees and agents but also for the acts of third parties, for example, their customers or clients.

New legislation

Amended harassment definition:

A person subjects a woman to harassment if he engages in unwanted conduct that is related to her sex or that of another person and that has the purpose or effect of violating her dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her (emphasis added).

This new definition means that a complainant is only required to show that the alleged treated was connected to or associated with sex and not that it took place because of the complainant's gender or that the conduct was "of a sexual nature". This amended definition will not affect the existing provisions relating to harassment where the alleged conduct is of a sexual nature. Types of behaviour which could now amount to sexual harassment which would not have done previously could include:

  • Persistent comments such as "women are hopeless drivers" or "men cannot multi-task"
  • Unpleasant comments which are directed towards both men and women and which are found to be offensive or humiliating by both genders, but which may be more offensive to one gender
  • Treating a female employee unfairly on the grounds of jealousy due to her conduct with another man
  • A male manager barging into the ladies' toilet and shouting at a female employee

A new provision has also been added to the legislation to impose liability on an employer if it fails to take reasonably practicable steps to protect an employee from harassment by a third party, where such harassment is known to have occurred on at least two other occasions (but not necessarily carried out by the same third person).

This means that, where historically an individual would have needed to have resigned and claimed constructive dismissal if their employer had refused to take steps to protect them from harassment from a third party, now such a claim could be brought whilst the complainant remains in employment. Further, a successful complainant will be able to seek an award of compensation for "injury to feelings".

What will be deemed to amount to "reasonably practicable steps" in this context remains to be seen. However, the current defence available to employers where the alleged discrimination has been carried out by their employees also includes a "reasonably practicable steps" requirement. This has proved to be a difficult test for employers to satisfy when seeking to rely on this defence in the Tribunal.

It will be some time before we start seeing cases deciding what is and is not a reasonably practicable step. In the meantime, we suggest employers consider:

  • Keeping records of any complaints made by employees as to their treatment by third parties
  • Dealing with such complaints in an appropriate manner – for example, written complaints are very likely to trigger the requirements of the statutory grievance procedure whereas verbal complaints may be resolved by a less formal method
  • Producing a policy relating to employee's interaction with third parties or amending an existing sex discrimination, harassment or equal opportunities policy
  • If third parties have access to premises, adding signage to confirm what treatment of the employees is considered to be appropriate and what would be inappropriate
  • If third parties make use of helpline or call centre facilities, adding a recorded message at the start of the telephone call to confirm what behaviour is acceptable
  • Including within any terms of engagement or contracts, the standards of behaviour expected
  • If calls or communications are monitored, checking that third parties are treating employees in an appropriate manner and following up on any inappropriate behaviour
  • Raising concerns with third parties as to the language used by them or their conduct towards employees, particularly if inappropriate behaviour is witnessed by managers

Given that compensation for successful discrimination complaints is uncapped, employers should also consider whether they are prepared to refuse to work for, or provide services to, third parties who do not comply with standards of acceptable behaviour.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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