In recent times employers have probably been more concerned to ensure their staff are aware of the risks of encountering liability for age discrimination or for discrimination on the grounds of religion or belief or sexual orientation to have been focussed on the law relating to sex discrimination. However recent developments in the law could have significant impact for employers who are responsible for what goes on in the work place when it comes to harassment, unless the employer can be seen to have taken all reasonable steps to prevent such harassment occurring.
The Sex Discrimination Act 1975 (Amendment) Regulations 2008 amend the Sex Discrimination Act 1975 (SDA) following a High Court's decision in last year in Equal Opportunities Commission v Secretary of State for Trade and Industry (, being yet another occasion on which a court has ruled that the UK has failed to implement EC law properly. The 2008 Regulations, which came into effect on 6 April 2008, widen the definition of sex harassment, and make employers liable in certain circumstances for the harassment of an employee by a third party, amongst other things.
Under the SDA a person harasses a woman where, "on the ground of her sex, he engages in unwanted conduct that has the purpose or effect of violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her". The 2008 Regulations amend the definition to encompass "unwanted conduct related to her sex or the sex of another person" that has the necessary purpose or effect. This is a wider test: for example, an employee would be entitled to complain about sexist remarks directed at someone else or about jokes relating to another woman, such as a celebrity. Would your staff realise they shouldn’t be making comments in work about the size of Jordan’s bust in the latest copy of Hello magazine?
The law also widens an employer’s liability for harassment of an employee by a third party such as a visitor, customer, supplier or other service user. The employer is responsible where "A third party subjects the woman to harassment in the course of her employment"; this would cover customers in a restaurant making lewd remarks to a waitress or builders working on your roof woolf-whistling at your employees as they come to work. However liability would only arise if "The employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so"; and "The employer knows that the woman has been subject to harassment in the course of her employment on at least two other occasions by a third party". Thus in our example, if the restaurant manager had been informed by other staff of previous comments made by the diner, and failed to warn the diner that such comments would result in him being barred from the restaurant or failed to put signs up in the restaurant warning customers not to be offensive to staff, the restaurant owner could be liable for unlimited damages.
Many readers will say “didn’t we already know this”? after the famous Bernard Manning racial harassment case Burton v De Vere where waitresses were abused by the notoriously rude comedian. Indeed, there are similarities in this law but actually Burton was much wider. The hotel owner didn’t need to know of any previous acts of harassment; the core issue was whether they could reasonably have prevented the harassment in question. Under this new test, even if the third party in question is notorious for having harassed employees in the past and the employer takes no action to prevent further harassment, a new "victim" will have no remedy until she herself has been harassed three times which seems rather odd.
Morgan Denton Jones
April 2008
The Sex Discrimination Act 1975 (Amendment) Regulations 2008 amend the Sex Discrimination Act 1975 (SDA) following a High Court's decision in last year in Equal Opportunities Commission v Secretary of State for Trade and Industry (, being yet another occasion on which a court has ruled that the UK has failed to implement EC law properly. The 2008 Regulations, which came into effect on 6 April 2008, widen the definition of sex harassment, and make employers liable in certain circumstances for the harassment of an employee by a third party, amongst other things.
Under the SDA a person harasses a woman where, "on the ground of her sex, he engages in unwanted conduct that has the purpose or effect of violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her". The 2008 Regulations amend the definition to encompass "unwanted conduct related to her sex or the sex of another person" that has the necessary purpose or effect. This is a wider test: for example, an employee would be entitled to complain about sexist remarks directed at someone else or about jokes relating to another woman, such as a celebrity. Would your staff realise they shouldn’t be making comments in work about the size of Jordan’s bust in the latest copy of Hello magazine?
The law also widens an employer’s liability for harassment of an employee by a third party such as a visitor, customer, supplier or other service user. The employer is responsible where "A third party subjects the woman to harassment in the course of her employment"; this would cover customers in a restaurant making lewd remarks to a waitress or builders working on your roof woolf-whistling at your employees as they come to work. However liability would only arise if "The employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so"; and "The employer knows that the woman has been subject to harassment in the course of her employment on at least two other occasions by a third party". Thus in our example, if the restaurant manager had been informed by other staff of previous comments made by the diner, and failed to warn the diner that such comments would result in him being barred from the restaurant or failed to put signs up in the restaurant warning customers not to be offensive to staff, the restaurant owner could be liable for unlimited damages.
Many readers will say “didn’t we already know this”? after the famous Bernard Manning racial harassment case Burton v De Vere where waitresses were abused by the notoriously rude comedian. Indeed, there are similarities in this law but actually Burton was much wider. The hotel owner didn’t need to know of any previous acts of harassment; the core issue was whether they could reasonably have prevented the harassment in question. Under this new test, even if the third party in question is notorious for having harassed employees in the past and the employer takes no action to prevent further harassment, a new "victim" will have no remedy until she herself has been harassed three times which seems rather odd.
Morgan Denton Jones
April 2008
