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
- 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
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.
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.
- 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.
Unwanted conduct related to protected characteristics, and the conduct has the purpose or effect of
- violating dignity
- creating an intimidating, hostile, degrading or offensive environment
:!:Prohibits harassment based on association & perception
Employees are liable to complain of behaviour that they find offensive even if it is not directed at them, and the complainant need not to possess the relevant characteristics themselves
- Bullying, nicknames, gossip, inappropriate questions, physical contact
- Can be verbal, written or physical
- Based on a victim's perception of the unwanted conduct rather than that of the harasser, & whether it is reasonable for the victim to feel that way
- Can apply to an employee who is harassed because they are associated with someone with a protected characteristic.
- can apply to an employee who is harassed because they are associated with someone with a protected characteristic
- Can apply to an employee who witnesses harassment because of the protected characteristic & which has a negative impact on their dignity at work or working environment.
- Employer vicariously liable for acts of harassment s.109(1) EA 2010
- Third party harassment by individuals outside an organisation as a defined type of discrimination was removed from the EA in 2013
- May still be protected against this type of harassment if an employer fails to take reasonable steps to prevent it & direct discrimination.
[Go Kidz Go v Bourdouane 1996]
- Lower job performance
- Lower morale
- Career interruptions
- Job loss
SEXUAL HARASSMENT as a business problem
- Costs related to litigation
- No compensation limit on ET cases
- Recent average 14,000£; rewards as high as 100,000£
- Increasing awards at both higher & lower levels
Sexual Harassment s.26(2)
Unwanted conduct related to sex violating a person's dignity
- Creating an intimidation, hostile, degrading & offensive environment
- Most cases seem to fall in the 2nd category
- Recognised in 1986 [Porcelli v Strathclyde Regional Council]
CONSEQUENCES OF NEW LAW
- Separates harassment from the general law of discrimination S.26
- The comparator element removed, only judging whether the conduct itself is harassment
- Through the Reasonable person test
- The Law doen't want to create a hypersensitive workplace
- Wider degree of vicarious liability to harm deal & deal with complaints
- An employer is not held vicarious liable if they can show that took such steps as were reasonable to prevent the unlawful discrimination. The onus will be on the employer to show this. s.109(4) EA2010
- Reasonable Steps defence
- Proactive employer
- Claim to an Employment Tribunal
- 3 months from act complained of
- [Moonsar v Fiveways Express Transport 2004]: pornographic material downloading: intimidating environment
Sex Discrimination Act 1975
Render unlawful certain kinds of sex discrimination & discrimination of the ground of marriage, and establish a Commission with the function of working toward the elimination of such discrimination & promoting equality of opportunity between men & women.
- Liability within the sex discrimination legislation attaches to acts carried out by employees acting in the course of employment.
Sexual harassment as a direct sex discrimination under Sex Discrimination Act 1986
- Sexual Harassment may constitute a "detriment" on grounds of sex, against which protection is available.
- Unwelcome acts involving physical contact of a sexual nature & conduct falling short of such physical acts.
- Direct Discrimination
- Less favourable treatment
- Comparator requirement
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
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
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.)
Highlighted two important issues:
- the exact nature of the treatment
- the impact of the treatment upon the victim
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.
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.
Problems of bringing a sex discrimination claim
- If the treatment is unconnected with the sex, then there is no discrimination
- Comments made to a group
- Comments not grossly offensive
- Claimant may need to reject the conduct