Prior to 1 October 2005, harassment was not defined within the Sex Discrimination Act 1975 (SDA) and was viewed as a form of indirect discrimination. The Employment Equality (Sex Discrimination) Regulations 2005 have changed this by inserting a new section 4A into the SDA, which defines harassment as being either:
- Unwanted conduct on the ground of the claimant's sex; or
- Unwanted conduct of a sexual nature.
In either case, the conduct must have the purpose or effect of:
- Violating the claimant's dignity; or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
An employer will be able to avoid liability for sexual harassment committed by an employee in the course of employment, if it can prove that it took such steps as were "reasonably practicable" to prevent the perpetrator from doing that particular act or acts of that description (section 41(3), SDA).
In Caspersz v Ministry of Defence (the "MOD"), the Employment Appeal Tribunal had to consider whether the existence of a "Dignity at Work" policy and evidence that the employer took it seriously meant that an employer had taken "reasonably practicable" steps to prevent sexual harassment taking place.
Caspersz brought claims for sex and race discrimination in the employment tribunal, which were dismissed. The tribunal found that the MOD had done everything reasonably practicable to prevent the harassment taking place and therefore had a defence to Ms Caspersz's claim. It relied on the fact that:
- The MOD had a "Dignity at Work" policy in place;
- The MOD took all reasonable steps to investigate the complaint as soon as it was made aware of the allegations
- There was evidence from at least two MOD witnesses to show how seriously in practice the MOD took allegations of breach of its Dignity at Work policy
The Employment Appeal Tribunal held that the tribunal was correct to take the two stage approach referred to in Canniffe v East Riding of Yorkshire Council which is that a tribunal should:
- Identify whether a respondent took any steps at all to prevent the employee from doing the act or acts complained of; and
- Having identified what steps, if any, the employer took, the tribunal should consider whether there were any further acts that the employer could have taken which were reasonably practicable.
The Employment Appeal Tribunal said that it was also appropriate to note the approach in Croft v Royal Mail Group that, in considering what steps are reasonable in the circumstances, it is legitimate to consider the effect they are likely to have, and not whether they have actually been effective. As such, to establish the defence, an employer need not actually prevent an employee making inappropriate comments to a person of a different race or gender but must take steps as are reasonably practicable to that end. It therefore seems open to a tribunal to conclude that having a policy, implementing it and taking it seriously is as much as an employer can do.