UK: EOC Publishes New Guidance on Sexual Harassment

It is twenty years since sexual harassment was established as a form of discrimination under the Sex Discrimination Act (SDA). Today it remains a significant problem within the workplace, with harassment claims accounting for 22% of all successful sex discrimination cases.

To coincide with the 20 year landmark, the Equal Opportunities Commission has published new guidelines to help employers deal with this difficult area. Written in a clear question and answer style, the guidance provides useful information for managers, many of whom are concerned that recent amendments to the SDA (which now includes a specific definition of harassment) will lead to more claims.

EOC Guidance

The Guidance aims to help employers to take effective measures to prevent sexual harassment and to handle any complaints fairly. In particular it covers:-

• the definition of harassment, emphasising that behaviour can amount to sexual harassment even if the perpetrator does not view it in that way;

• harassment outside the workplace ‘such as at conferences, training days and even socialising after work’;

• the need to deal with the issue as soon as it arises;

• whether to adopt a formal or informal procedure when investigating;

• the need to take into account the rights of the alleged perpetrator; and

• the problems of reintegration and backlash after an investigation has finished.

The Guidance reminds employers that they can avoid liability for sexual harassment only if they take such steps as are ‘reasonably practicable’ to prevent the conduct in question. An effective and well established harassment policy can be a crucial aspect of such a defence, as the recent case of Caspersz v Ministry of Defence demonstrates. There the defence succeeded because the employer had an excellent policy in place, had implemented it in a conscientious manner and had investigated the complaint at the earliest opportunity.

Managers often find it difficult to deal with harassment cases and would be well advised to familiarise themselves with the guidance as soon as possible. The EOC's emphasis on effective policies and procedures also serves as a reminder that policies should have been amended to reflect the 2005 amendments to the SDA and that staff training should be up to date.

Read literally, the Disability Discrimination Act (DDA) only protects a disabled person from being discriminated against on the grounds of his own disability. However in the case of Coleman v Attridge Law the European Court is to be asked to consider whether European law requires the Act to go further and protect anyone - disabled or not - if they suffer discrimination by virtue of their association with a disabled person.

The case concerned a complainant who, though not disabled herself, alleged she had been discriminated against on the ground that she was a carer of her disabled son. She argued that the European Framework Directive, which outlaws discrimination in employment ‘on the grounds of’ religion or belief, disability, age or sexual orientation, was intended to cover discrimination by association.

The Tribunal hearing her claim agreed with most of her arguments but decided it could not write words into the DDA without referring the matter to the European Court of Justice. Appropriate questions are currently being drafted and will be submitted to the ECJ shortly.

In race cases it is established beyond doubt that discrimination by association is prohibited. This means that an employee who is discriminated against because of the racial origin of his spouse is protected, as is a white manager who is dismissed for failing to exclude black customers from the workplace (Showboat Entertainment v Owens). However, there are some limitations on this following the recent Court of Appeal decision in Redfearn v Serco.

Similarly it is assumed (although there is as yet no case law) that discrimination on the grounds of religion or belief or sexual orientation includes discrimination by association so that it would be unlawful to tease an employee because his son is gay, even though the teasing is based on the son's sexual orientation and not that of the employee. If, as is widely expected, the ECJ adopt a similar approach in respect of disability, it is hard to see how age discrimination (the only other strand covered by the Framework Directive) could be treated any differently. However currently the age regulations do not go this far and consequently these may be open to challenge.

Outside the financial services sector (where special rules apply) an employer has no general duty to provide a reference to a current or former employee. Nonetheless there are exceptional circumstances where failure to provide a reference can lead to liability. One example is where a reference is refused in order to victimise an employee for previously bringing a discrimination claim. In these circumstances the refusal can itself give rise to a discrimination complaint and it is no bar to the claim that the refusal occurs after the employment has ended. Similarly, refusal of a reference on the ground that a worker has blown the whistle and made a protected disclosure can give rise to a claim under the Employment Rights Act that the worker has suffered a detriment. Again the fact that the worker has left the organisation at the time the reference is refused does not prevent the claim, a point clarified by the recent case of Woodward v Abbey National.

Given there is no cap on awards in successful discrimination and detriment claims this is an area where managers should consider taking professional advice.

The DTI is consulting on extending statutory holiday rights by adding a period equivalent to bank and public holidays to the current 4 week entitlement. This would mean that an employee working 5 days per week would have a statutory entitlement of 28, rather than 20, days paid leave each year. Any bank holidays taken as paid leave would count towards the total, but there would continue to be no automatic right to take bank holidays as paid leave without the employer's agreement.

The consultation, which closes on 22 September 2006, focuses on practical issues such as whether to allow carry over or payment in lieu in respect of the extra days. The change is expected to take effect on 1 October 2007.