Sexual Harassment: New Guidance - Employment Law News Autumn 2005

01 October 2005

On 1 October 2005, the Employment Equality (Sex Discrimination) Regulations 2005 are due to come into force. The regulations will update and make several important changes to the Sex Discrimination Act 1975, including for the first time the express prohibition of harassment, including sexual harassment in the fields of employment and vocational training.

The Department for Trade and Industry has recently issued draft guidance setting out what the new laws will say, what they mean in practice and provides some examples by way of illustration.

There will be a new statutory definition of sexual harassment. Conduct will amount to sexual harassment if:

• A person subjects a woman, on the grounds of her sex, to unwanted conduct that has the purpose or effect of violating her dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her; or
• 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
• Of creating an intimidating, hostile, degrading, humiliating or offensive environment for her; or
• On the grounds of her rejection of a submission to unwanted conduct of the kind mentioned above treats her less favourably than he would treat her if she had not rejected or submitted to the conduct.

Whilst the statutory definition refers to harassment against women, it is important to note that men will also be protected from harassment under the new laws. The changes will also prohibit harassment due to gender reassignment.

The regulations should provide much needed clarity in this area of the law. Employers should also be reviewing their employment policies, practices, procedures and training requirements to ensure that they are compliant.

Any conduct that has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for someone is likely to be harassment, even if the creation of that environment was not the intention behind the conduct. Existing case law suggests that tribunals will have to decide on the facts of each case in concluding whether that conduct could reasonably be considered as having the effect of harassing the complainant. Tribunals will give particular regard to the subjective perception of the person making the complaint. Thus, if a person genuinely and reasonably feels they have been harassed, it is likely they will be able to persuade a tribunal they were in fact harassed, even if that was not the intention of the harasser.

ACAS have updated their guide to bullying and harassment at work to reflect the changes that will apply after 1 October 2005. The guide sets out examples and definitions of what might be considered bullying and harassment. It notes that there are many different definitions of bullying and harassment and that employees often complain of bullying and harassment when the behaviour complained about does not fit within the employer’s view of harassment or bullying. The guide considers that any actions, comments or conduct that is viewed as demeaning or unacceptable to the recipient should be considered within the remit of the guide.

The ACAS guide suggests that employers adopt a bullying and harassment policy and, if necessary, training to clarify what is viewed as unacceptable behaviour, examples being:

• Ridiculing or demeaning someone, picking on them or setting them up to fail;
• Copying memos that are critical about someone to others who need not know;
• Spreading malicious rumours or insulting someone, particularly on any discriminatory grounds;
• Exclusion or victimisation;
• Unfair treatment;
• Overbearing supervision or other misuse of power or positions;
• Unwelcome sexual advances;
• Display of offensive materials; Making decisions on the basis of sexual advances being accepted or rejected;
• Making threats or comments about job security without foundation;
• Deliberately undermining a competent worker by overloading and constant criticism; and
• Preventing individuals progressing by internally blocking promotion or training opportunities.

The draft guide also provides detail on specific action that employers need to take on bullying and harassment and how an employer should respond to complaints of bullying and harassment.

The ACAS guides can be found at; www.acas.org.uk/publications/al04.html

Employers should take careful note of the guidance and ensure that their employees are aware of what is considered acceptable and unacceptable conduct or behaviour. Quite apart from the human cost, failure to do so could also be costly for the employer as it is likely to be liable for the unlawful acts of its employees. 

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