A Briefing Note on the Repeal of the Law Protecting Women from Sexual Harassment at Work by Clients, Customers and Visitors
Harini Iyengar, a barrister who specialises in Employment and Discrimination law, provides a briefing note about the forthcoming repeal in the Enterprise and Regulatory Reform Bill of a law which currently protects women from sexual harassment at work by third parties.
Why Should You Care About the Law on Sexual Harassment at Work? Whether you label yourself a “Progressive Woman”, a feminist, a pro-feminist, or a person who prefers a harmonious workplace, you should be aware of a forthcoming reduction of legal protection against workplace sexual harassment. The repeal will also remove protection against other forms of workplace harassment, although this blog post concerns sexual harassment of women.
As they say in medicine, “Common things occur commonly.” Employment lawyers most often see harassment cases in the form of sexual harassment. Regrettably, it is not ageist, sexist, or heteronormative, but simply an expression of the factual reality, to observe that most workplace harassment cases involve the same paradigm: a more senior male sexually harassing a more junior female. Although most cases involve offensive remarks, unwanted sexual propositions and groping, it should not be forgotten that sexual harassment at work sometimes extends to rape.
Sexual harassment affects women of all ages in all types of jobs and professions. For example, in the Law Society’s 2012 survey, 6% of solicitors reported that they had experienced sexual harassment at work. Whilst some women are able to tackle sexual harassment directly by themselves, most women require support from their employer in dealing with the problem. Sensitivities are inevitably more acute when the perpetrator of sexual harassment is not just a colleague but a client, customer or visitor of the employer.
What Law on Sexual Harassment is Going to be Repealed?
Clause 57 of the Enterprise and Regulatory Reform Bill provides for the repeal of subsections 40(2) to (4) of the Equality Act 2010.
What Does the Law Say at Present?
Section 26 of the Equality Act 2010 defines sexual harassment as a specific form of general harassment:
(1) A person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of—
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) A also harasses B if—
(a) A engages in unwanted conduct of a sexual nature, and
(b) the conduct has the purpose or effect referred to in subsection (1)(b).
(3) A also harasses B if—
(a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,
(b) the conduct has the purpose or effect referred to in subsection (1)(b), and
(c) because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.
(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
(5) The relevant protected characteristics are — age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.
Under section 40 of the Equality Act 2010, it is unlawful for an employer to sexually harass an employee or job applicant:
40 Employees and applicants: harassment
(1) An employer (A) must not, in relation to employment by A, harass a person (B)—
(a) who is an employee of A’s;
(b) who has applied to A for employment.
(2) The circumstances in which A is to be treated as harassing B under subsection (1) include those where—
(a) a third party harasses B in the course of B’s employment, and
(b) A failed to take such steps as would have been reasonably practicable to prevent the third party from doing so.
(3) Subsection (2) does not apply unless A knows that B has been harassed in the course of B’s employment on at least two other occasions by a third party; and it does not matter whether the third party is the same or a different person on each occasion.
(4) A third party is a person other than—
(a) A, or
(b) an employee of A’s.
What Does the Current Law Mean?
Sexual harassment is:
• unwanted conduct of a sexual nature
• which has the purpose
• or effect
• of violating the recipient’s dignity
• or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
It is against the law for an employer:
• to sexually harass an employee or job applicant
• or to tolerate or condone the sexual harassment of an employee or job applicant
• by a third party like a client, customer or visitor
• but only if the employer failed to take reasonably practicable steps to prevent the third party from committing the sexual harassment
• and only if the employer knew that she had been sexually harassed at work on at least two previous occasions by either the same or any third party.
What Does this Mean in Practice?
Section 40(2)-(4) makes the employer vicariously liable for harassment by a third party. This means that the employer is legally liable, even though it was the client, customer or vistor, not the employer himself, who committed the sexual harassment.
The first practical effect of section 40(2)-(4) of the Equality Act 2010 is to create a strong legal incentive for an employer to take reasonably practicable steps to prevent sexual harassment of his female employees by the employer’s clients, customers, visitors or other third parties in the workplace. An employer who could demonstrate that he had taken reasonably practicable steps to protect the women in his workforce from sexual harassment by third parties would not be held legally vicariously liable.
Second, section 40(2)-(4) generally encourages the female employee to inform and seek the protection of her employer when she is sexually harassed at work by a client, customer or visitor, instead of feeling that it is a problem which she had to overcome all by herself. This is because the employer is vicariously liable for the harassment only where she has kept him informed about it (at least two previous occasions of harassment by a third party are required).
For example, if a celebrity were in the habit of visiting a hospital ward and sexually harassing nurses working there, their employer’s current legal obligations under s 40(2)-(4) would incentivise the employer to put a stop to it, rather than to turn a blind eye, in a situation in which the individual nurses may feel daunted about challenging the celebrity.
The employer is usually in charge of the workplace, the people working there, and the premises. The employer is usually the person with the authority to ask third parties to modify their behaviour, and, if necessary, to get out. Section 40(2)-(4) of the Equality Act 2010 establishes a clear regime under which the employer bears responsibility for maintaining a workplace free from sexual harassment as far as is reasonably practicable, whether the harassment comes from colleagues, clients, customers or visitors. It is a sensible provision which protects women workers from sexual harassment and is unobjectionable to any right-minded employer who respects his women workers.
Why is the Law Being Changed?
71% of respondents to the official consultation on the repeal of s 40(2)-(4) wanted the law to stay as it is. The Orwellian response to the official consultation was:
“We received 80 responses, of which 16 (20 per cent) agreed our proposal for repeal and 57 (71 per cent) opposed it. Responses which agreed with the proposals came mostly from individual public, private and not-for profit sector employers and business organisations. All business representative organisations supported repeal. Responses which disagreed with our proposal were mainly on behalf of public sector employers, unions and equality lobby groups.”
It appears that, even when they form the majority of consultation respondents, the views of certain female-dominated sectors of the workforce and of equality lobby groups are not as equal as the views of other male-dominated sectors of the economy.