The news that the recent changes to the Sex Discrimination Act 1975 have ushered in liability for third party harassment will doubtless have had many of you pricking up your ears.
Since 6 April, an employee has been able to bring a claim against his or her employer on the basis of harassment or a discriminatory act or omission committed by a third party, such as a customer or client.
The act now provides that an employer who fails to take reasonably practicable steps to protect employees from third party harassment related to sex, where the employer knows that such harassment has occurred on at least two other occasions, will be treated as subjecting the employee to harassment. A one-off incident of harassment will not be enough to attract the protection of the act.
The act also provides that, for the purposes of the repetitive harassment, it does not matter whether the third party is the same person on each occasion. Employees might claim that they have been subjected to offensive sex-related conduct on three separate occasions. Provided that the employer knew about the first two incidents and did nothing to prevent the third, it is likely that the employee's claim will succeed, provided that the definition of harassment is satisfied.
An example of the way the new harassment provisions will work is where a charity knows that a customer comes on a regular basis to one of its charity shops and, every time he does so, sexually harasses a female member of staff. Although the charity has witnessed the conduct and complaints have been made, the charity nevertheless chooses to do nothing about the situation because it doesn't want to lose the customer. In this situation, the charity will be liable for the third party harassment.
Whether or not harassment has occurred will be tested on an objective basis. This means that tribunals will not have to give a remedy to unusually sensitive victims in claims based on trivial incidents that, when taken into account reasonably, ought not to be considered harassment.
The final part of this series will look at changes to the act in relation to pregnancy and maternity leave.
- Emma Burrows is partner and head of the employment group at Trowers & Hamlins solicitors