The treatment of women who feel they are being sexually harassed at work has changed significantly as a result of new regulations forcing employers to take more responsibility for the behaviour of their staff.
The Employment Equality (Sex Discrimination) Regulations 2005 were implemented in October , overhauling the previous regime.
The Regulations include a new definition of indirect sex discrimination, an express prohibition of discrimination on the grounds of pregnancy or maternity leave, greater protection for those working outside Great Britain and a prohibition against discrimination in unpaid practical work experience. One of the key changes is the law relating to sexual harassment at work.
For the first time in the UK there will be an express legal definition of harassment within the sex discrimination legislation. Women who are sexually harassed at work no longer need to show that a man would have been treated differently. This will serve as a greater protection from harassment as employers can no longer defend a claim by claiming that men in the workplace were subject to the same behaviour.
The Regulations will try to stop harassment where, on the ground of sex, a man engages in unwanted conduct against a woman, whether verbal, non-verbal or physical, with the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The definition will also apply where a woman is treated less favourably because she has rejected or submitted to such conduct. The legislation will of course equally outlaw sexual harassment of men.
In practice this will mean that where a colleague persists in making comments about a woman's appearance, such as what nice legs she has, he could be accused of sexual harassment. Or where a woman is told that she will be promoted if she has a fling with her boss, she should be able to claim that she has suffered sexual harassment.
If she is passed over for promotion when she refuses these unwanted advances she will have a claim.
The increasing number of employers who use trips to lap-dancing clubs to drum up business, and ask female employees to go along, may also find themselves embroiled in a sexual harassment claim.
TUC General Secretary Brendan Barber believes the change will force employers to take their responsibilities towards providing a harassment-free working environment seriously.
Barber said: "There's no place in the modern workplace for office gropers and lechers and bosses need to do more to stop those responsible for bad behaviour from making working life unbearable for thousands of women".
But because employers could be vicariously liable for the inappropriate behaviour of their staff, many businesses will view the new law as yet another avenue for employees raising tribunal claims and an extension to the already growing employment compensation culture.
All employers have a duty to provide a safe system of work, and in order to minimise the risk of such a claim employers should:
- take any complaint of harassment seriously
- have an open mind
- treat the situation confidentially and sympathetically
- act promptly to remove the possible source of harassment
- investigate the complaint thoroughly and document the process
- avoid discriminating against either party.
Sheila Gunn is a partner specialising in employment law with commercial law firm Shepherd and Wedderburn. 0141 566 8555