Changes to the Sex Discrimination Act 1975 came into force on 6 April 2008 after regulations were rushed through Parliament in March.
The amendments include recasting the definition of sexual harassment and a new liability imposed on employers who unreasonably fail to protect employees from third-party sexual harassment.
The effect of these amendments is that employers need to review and, probably, amend their policies and procedures. The biggest challenge will be in devising effective bullying and harassment policies that are implemented in practice within the workplace so as to prevent employees being subjected to harassment from clients and other third parties.
It is important to understand the amended definition of sexual harassment to appreciate how prospective claims could arise. A person subjects a woman to harassment if “he engages in unwanted conduct that is related to her sex or that of another person”. So, for example, if a male manager subjects a female subordinate to verbal sexist abuse in front of her colleagues, those colleagues will also be able to bring a claim of sexual harassment, regardless of their gender, if they are affected.
Managing such a situation may present little difficulty for employers already operating an effective harassment policy. By contrast, the new provisions relating to harassment by third parties creates greater difficulties for employers, which do not have the same control over third parties as they have over employees in the workplace.
Under a new section 6(2B), an employer is to be treated as subjecting a woman to harassment where:
•a third party subjects the woman to harassment in the course of her employment, and
• the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so.
This is provided that the employer knows that the woman has been subject to such harassment on at least two other occasions. The term ‘third party’ means anyone other than the employer or one of their employees – it is immaterial whether the third party is the same or a different person on each occasion. This protection is, of course, accorded equally to employees of both genders.
In practice, how will the new law affect working practices within the legal profession? Preventative measures will include making it clear in policies (often published on the employer’s intranet, website and reflected in terms of business) that the harassment of employees will not be tolerated. But applying the policy is where it could get tricky.
Imagine a situation where a partner takes an assistant solicitor to a series of negotiation meetings, at which both their client and the other side are present, and the assistant complains after the first meeting that she is being ‘ogled’ by the solicitor representing the other side. Even if the assistant says nothing but is plainly upset, the partner would be ill-advised to ignore such conduct. Although left feeling uncomfortable, and indeed in distress, the assistant is very likely to wish to continue to attend the meetings, which may provide a valuable learning experience. Nor will she wish to allow such behaviour to undermine her professionally. To suggest in response to her complaint that she may prefer to absent herself from further meetings would be to victimise her.
The situation must be addressed discreetly and tactfully, as the behaviour may well be repeated at future meetings and leave the firm vulnerable to a subsequent claim if it is not tackled early on. And the situation could be even more difficult if it is the firm’s own client who is guilty of ‘ogling’ the assistant. Addressing the issue with the client may well cause offence and damage an otherwise good – and maybe lucrative – relationship, but failing to do so could have equally unhappy consequences.
When the employer witnesses the offending behaviour within the workplace, it should be possible to nip the problem in the bud. However, when employees are sent on secondment or regularly attend a client’s premises, they may be more vulnerable to harassment. Even though not on their employer’s premises, if the harassment occurs ‘in the course of employment’ the prospective liability arises.
How much of a problem will this prove to be in practice? Many female members of the profession can readily cite instances where they have been the subject of, or have observed, unwanted conduct of one kind or another. Whether they wish to take action as a result is an entirely different matter. To some it may be ‘all in a day’s work’. No doubt much depends on the severity of the harassment and its effect.
One thing is clear: employees are entitled to complain and employers must be prepared to take action accordingly.
Rachel Dineley is a partner in the employment and pensions group and head of the national diversity and discrimination unit at Beachcroft