Harassment (Sexual Harrasment (EQUALITY ACT 2010
(Vicarious Liability (An…
Employment Equality (Sex Discrimination ) Regulations of 2005 Spurred by EU directives on sexual harassment, the UK government introduced the Employment Equality (Sex Discrimination) Regulations 2005
- explicitly prohibit harassment and sexual harassment in employment and vocational training.
- unwanted conduct on the ground of the applicant’s sex; or
- unwanted conduct of a sexual nature.
The Regulations have since been amended by the Sex Discrimination Act 1975 (Amendment) Regulations 2008
- remove the requirement for a comparator
- remove the requirement that the harassment be ‘on the ground of sex’, substituting instead that the harasser ‘engages in unwanted conduct that is related to her sex or that of another person’
Equal Opportunities Commission:
- ‘on the ground of’ involve the question of causation, requiring the tribunal to investigate the reason why the behaviour occurred
- the requirement for a comparator in the Regulations was contrary to the wording of the EU Directive
EQUALITY ACT 2010
Victimisation : when an employee is treated badly because they have made or supported a complaint or raised a grievance under the EAQ or because they are suspected of doing so. An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint.
Harassment applies to all protected characteristics except for pregnancy & maternity & marriage & civil partnership.
- Employees will be able to complain of behaviour that thy find offensive even if it is not directed at them, and the complainant need not possess the relevant characteristics themselves.
Indirect Discrimination : Applies to age, race, religion or belief, sex, sexual orientation, marriage and civil partnership, disability and gender reassignment.
Direct discrimination: when someone is treated less favorably than another person because of a protected characteristics they have or are thought to have
Replaces previous legislation such as the Race Relations Act 1976 and the Disability Discrimination Act 1995
- age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership & pregnancy & maternity.
- Removed the comparator requirement
- reasonable person test
An employer will not be held vicariously liable if it can show that it took such steps as were reasonable to prevent the unlawful discrimination (s.109(4) EA10). The onus will be on the employer to show this.
- Reasonable steps defence
- proactive employer
- claim of SH can be made to an empoyement tribunal
- 3 monthes from act complained of
Sexual harassment entered the British legal landscape in 1986.
- as a type of direct sex discrimination under the Sex Discrimination Αct 1986 was brought after the landmark decision in Porcelli v Strathclyde Regional Council.
- Sexual Harassment may constitute a "detriment" on grounds of sex, against which protection is available.
- includes unwelcome acts involving physical contact of a sexual nature and conduct falling short of such physical acts.
Response to an allegation by :
- statutory defence, denying the claims by the respondent
- by arguing that the actions complained of do not constitute sexual harassment.
Denial that the alleged harassment took place appears to be a favoured tactic of employers
Section 41 (1) SDA an act done by an employee in the course of employment shall be treated as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval
section 41(3) SDA provides that it is necessary for the employer to prove that it took such steps as were reasonably practicable to prevent the employee from committing, in the course of his employment, an act of harassment.
- The defence will only succeed where the employer has laid the groundwork in advance by adopting, implementing and disseminating a sound anti-harassment policy
Claim to an Employment tribunal
- instituted in the 1960s
- informal, inexpensive, and speedy venue for resolution
- it falls first to the applicant to establish facts that constitute a "prima facie" case of discrimination.
- The burden of proof shifts from the applicant to the employer (European Directive 97/80/EC).
- No cap or upward limit on monetary awards.
4. GENDER COMPOSITION
their lack of knowledge and sensitivity to gender/power relations in organizations.
- Female judges more likely than males to rule in favour of the complainant in sex discrimination cases (Boyd et al 2010)
- When a female judge sits on a panel with male judges, the men are significantly more likely to rule in favour of plaintiffs claiming sex discrimination. (Boyd et al. 2010)
- women possessing experiential knowledge
3.TIMING OF THE CASE
A widening interpretation of sexual harassment & of vicarious liability of employing organisations. Tribunal watchers have further noted an increasing " sophistication" in tribunal judgements in sexual harassment cases (EOR 2004)
- power will influence how these
institutions operate and the outcomes attained from them.
- tribunal process increasingly technical over time
- legal representation is a significant determinant of both success and the level of compensation for claimants in unfair dismissal cases(Sinclair et al. (2000)).
1.CREDIBILITY Sex & Race discrimination cases as a direct contest of credibility between claimant & respondent "he said, she said"
- claimant's occupational identity
- claimant's initial reaction to the alleged harassment
- avoidance & diffusion
- seeking social support
- seeking help outside the organisation
- the manner of their departure from the employing organization
- the extent of any complementary claims
- alleging other breaches of employment rights.
Much more likely to react passively than assertively or confrontationally
- power realities
- gendered social expectations
- Direct Discrimination
- Less Favourable treatment
- comparator requirement
Porcelli v Strathclyde Regional Council, 1986
- the first case to go to the higher court
- male employees used sexual harassment as a means of driving a woman out of the job because she was a woman
- Demonstrated difficulties with using sex discrimination law, with its insistence on the reason for the treatment - is it on the ground of her sex?- and on difference- how would a similarly situated man have been treated?
- Focus should be on the means male colleagues employes to achieve their objective (sexual harassment.)
Stewart, Brumfitt &Pearce demonstrate problems of trying to fit harassment into a "differences" approach.
- It proves impossible to go further and show that the reason for their treatment was their sex, rather than some other reason, ot that the disadvantege suffered was more severe than a man would have suffered.
Brumfitt v Ministry of Defence
- foul language addressed to both men & women
- no to amount to less favourable treatment on the grounds of sex.
- EAT unable to accept that the same behaviour can amount to less favourable treatment where its consequences or effects are different for different sexes.
Highlighted two important issues:
- the exact nature of the treatment
- the impact of the treatment upon the victim
Equal Treatment Directive 2002 #
Protection of Harassment act 1997
A person must not pursue a course of conduct
- which amounts to harassment of another and
- which he knows or ought to know amounts to harassment of the other.
- more restrictive than the discrimination route in requiring a course of conduct and was not designed to be used in such situation(workplace).
- PHA 1997 does not permit vicarious liability
Majrowski v. Guy’s & St Thomas NHS Trust (2005)
- a clinical audit coordinator harassed at work by his department manager partly due to his sexual orientation
- brought a claim for damages against his employer of the PHA 1997.
- However, the court of appeal held that an employer may be held vicariously liable for harassment by its employers, in breach of the PHA.
- sufficiently clear link between the work and the harassment
diminished work performance, lower job satisfaction, absenteeism, career interruptions, job loss, depression and health problems (Gutek, 1985).
Codes of Practice : Harassment pollutes the working environment and can have a devestaing effect upon health, confidence and performance of those affected by it. (European Commission, 1992)
- 40-50% ow working women(Commission, 1999)
- costs to individulas and associations
Sex Discrimination Act 1975 #
Liability within the sex discrimination legislation attaches to acts carried out by employees acting in the course of employment
Render unlawful certain kinds of sex discrimination and discrimination on the ground of marriage, and establish a Commission with the function of working towards the elimination of such discrimination and promoting equality of opportunity between men and women generally; and for related purposes.
It is the only that contained an express provision rendering employers liable for acts of harassment by 3rd parties prior to the Equality Act 2010
Equal treatment Directive 2002
the principle of equal treatment means that there shall be no direct or indirect discrimination on the grounds of sex in the public or private sectors, including public bodies, in relation to conditions for access to employment, vocational guidance and training, employment and working conditions, including dismissal and membership in organizations of workers or employers
- introduction of harassment related to sex and sexual harassment
- forms of discrimination in violation of the equal treatment principle.
British law prohibits both
- hostile environment and
- quid pro quo harassment: where rejection or submission to harassment forms the basis of employment decisions.
- the employer is left to define sexual conduct
- sexual conduct per se is not harmful; incorrect to deem sexualised behaviour or sexual conduct that can discriminates against women to be sex discrimination.-> under-inclusive and over-inclusive
- zero-free zones : prohibition of sexual relationships or their declaration
- a focus on "sexual" conduct, rather than disadvantage and inequality, can hinder progress towards sex equality in the workplace
- more difficult for women to achieve workplace equality through sex segregation
- open-door policies
- less opportunities for mentoring and training
- perpetuates stereotypes: puritanical attitides that views sex as bad and casts women as needing protection from male sexuality
- prohibit the freedom of expression
- introduce policies which attempt to limit all forms of sexual expression
- must apply proper disciplinary procedures to those accused of breaching any workplace code of conduct
- If an employer dismisses an employee for behaviour that is a breach of a workplace code of consuct, though not itself an unlawful for of harassment, will be found to be unreasonable.
- high price in terms of mental stress
- unlikely to return at work
By not making any attempt to define sexual conduct, and instead encouraging an individual employer to set their own standards of unacceptable behaviour, there is a real risk that employers may be tempted to specify all sorts of conduct as sexual, thus making easier to dismiss the offending worker. :red_flag:
where a person engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect of
- violating her dignity or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
Liability of employers
case law in the mid 90s suggested that employers could be liable under
the discrimination legislation for the acts of third parties
- not through an extension of vicarious liability
- employer's overall control of the situation
- Organisation must be aware that if it engages temporary workers and controls what they do, it may incur liability for their actions.
- Organisations that do not directly employe those do not escape liability.
- the law is widened increasing the potential for employers to be found liable in tort for the criminal actions of their employees.
- HRM must adopt a constructive and effective system for responding to risks connected with particular work activities.
CRITERIA FOR EMPLOYER'S VICARIOUS LIABILITY
- Employment status: difficult to ascertain the precise nature of the employment relationship - part-time, temporal or casual employment engagements
- Hawley v. Luminar Leisure 2006
- In the course of employment: an employer will only be liable for the tortious acts committed by its employees during the course of employment.
ENCOURAGES GOOD MANAGEMENT PRACTICES
- More thoughtful about R&S, whether a person is capable, qualified & of a suitable temperament for the post.
- Encourages accident prevention by giving an employer a financial interest in encouraging his employees to take care for the safety of others.
- Supervision and control of their employees whilst they are undertaking their employment.
- the wrongful acts of the employee are so closely related to their duties that they can properly and fairly be regarded as being within the course of employment
- it is an inevitable part of the commercial life hat agents & employees may act beyond their authority & instructions causing damage to a 3rd party
- the notions of the assumption of responsibility
- the employer has the deepest pockets
- Burton and anor v De Vere Hotels Ltd (1997): racially and sexually abusive comments
- Go Kidz Co Ltd v Bourdouane
- Pearce v Mayfield School (2003)
Health and Safety at Work Act 1974
- impose obligations upon the employer to safeguard the health and safety of workers. #
Employment Equality Regulations 2005
- harassment on the grounds of sex, & sexual harassment
- unlawful to treat a woman less favourably on the ground that she has rejected, or submitted to, either of these forms of treatment.
:red_cross: still tries to fit harassment into an equality framework