Sex Discrimination Act changes explained

Michael Rubenstein looks at the DTI's draft online guide to the forthcoming changes to the Sex Discrimination Act (SDA), coming into effect on 1 October 2005.

The Department of Trade and Industry Women & Equality Unit has published a draft guide* on its website, explaining the forthcoming changes to the Sex Discrimination Act (SDA), to be made as part of the implementation of the amended Equal Treatment Directive 2002/73 .

Consultative draft Regulations amending the SDA were published earlier this year and final Regulations will be published during the summer, with the changes to the law coming into effect on 1 October 2005. The new publication explains the changes and gives some illustrative examples of how they are intended to work. It appears to have been prepared on the basis of the consultative Regulations as published, rather than taking into account any changes that may be made as a result of the consultation process. In the case of the definition of harassment, this highlights the need for serious consideration to be given to changing the proposed Regulations.

Harassment and sexual harassment

The revised Equal Treatment Directive provides for the first time a binding Community-wide definition of harassment, encompassing both sexual harassment and sex-based harassment. The amendments to the Sex Discrimination Act will expressly prohibit both forms of harassment. The consultative draft Regulations are worded as follows:

"(1) For the purposes of this Act, a person subjects a woman to harassment if -

(a) on the ground of her sex, he engages in unwanted conduct that has the purpose or effect -

(i) of violating her dignity, or

(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,

(b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect -

(i) of violating her dignity, or

(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or

(c) on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct.

(2) Conduct shall be regarded as having the effect mentioned in sub-paragraph (i) or (ii) of subsection (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect."

We criticised the government's proposals for a definition of "harassment" and "sexual harassment" in Amending the SDA , suggesting that the language used may not meet the Directive's aim of making the definition freestanding, ie without requiring a comparison with how a person of the opposite sex would be treated. The Women & Equality Unit describes "harassment" as "unwanted conduct related to a person's sex that is not 'of a sexual nature'". Sexual harassment, by contrast, is described as "unwanted conduct not necessarily related to a person's sex but is 'of a sexual nature'".

The following is an illustration then given by the Women & Equality Unit of the new freestanding definition of "sexual harassment":

"A provincial newspaper provides short unpaid work experience placements for journalism students of local colleges. The editor wishes to run a feature on a dispute between residents and a 'gentlemen's club', or strip club. He wants to send a female work experience student with the photographer to take pictures inside the club during its opening hours. The student makes it clear that she feels very uncomfortable with the idea of this, but the editor says it will be good experience and insists that she accompany the photographer, despite her objections. The student reluctantly agrees, but finds the experience distressing and humiliating. In such a case, a tribunal is likely to find that sexual harassment has occurred."

Quite simply, this illustration does not work. The main problem is that, although a tribunal might accept that the female student's dignity was violated by being sent to a strip club where she had to observe sexual conduct, the only sexual conduct here is by those at the strip club. There is no conduct of a sexual nature - verbal, non-verbal or physical - by the newspaper editor. Therefore, the editor cannot be held to have committed an act of sexual harassment, and the employer is not liable.

What the Women & Equality Unit evidently is driving at here is the type of situation that gave rise to Burton v De Vere Hotels, the Bernard Manning case (EOR 70), where two black waitresses successfully claimed discrimination on grounds that they had to work in an environment where the comedian Manning was telling racist jokes. That decision was expressly disapproved of by the House of Lords in Pearce v Governing Body of Mayfield School (EOR 120), casting grave doubt on whether employees have a remedy for racial or sexual harassment by third parties, or for where they are put in a position by their employer in which they are subjected to harassment.

As we pointed out in Amending the SDA , the intention of the Directive is to create a freestanding definition of unlawful harassment. The Directive stipulates that: "Harassment and sexual harassment within the meaning of this Directive shall be deemed to be discrimination on grounds of sex, and therefore prohibited." It is a deeming provision. Subjecting a woman to a situation in which her dignity is infringed is not sexual harassment as defined by the Directive because it does not involve sexual conduct by the perpetrator, but it could conceivably fall within the Directive's definition of "harassment": "Where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating, or offensive environment."

The proposed definition of "harassment" in the Sex Discrimination Act is where "on the ground of her sex, he engages in unwanted conduct that has the purpose or effect - (i) of violating her dignity, or (ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her." It is those additional words that are the problem because they take us right back to Pearce v Governing Body of Mayfield School. The Women & Equality Unit's example illustrates this very well: the reason, we are told, that the trainee was sent to the strip club was not "on the ground of her sex" but because the editor thought it would be a "good experience" for her.

Unless the wording of the amendments is changed, therefore, women complaining of harassment will still have to show not just that they experienced the prohibited conduct as defined, but also that the reason why they experienced it was on the ground of their sex. This means that an employer will not be liable if a man in comparable circumstances would have been treated similarly. If that is the case, it is doubtful whether the UK will have correctly implemented the revised Equal Treatment Directive.

Geographical limits

The new Regulations extend the geographical coverage of the SDA and the Equal Pay Act to cover employees in certain circumstances who work outside Great Britain. This will bring these statutes into line with the territorial jurisdiction under the other discrimination laws currently in force.

The new definition provides that an employee's employment will be regarded as being at an establishment in Great Britain if the employee "does his work wholly or partly in Great Britain". This means that an employee will be treated as employed at an establishment in Great Britain if he or she works partly in Great Britain, even if only for a small proportion of their time, and works most of the time overseas.

They will also be able to bring a claim if their employment is wholly outside Great Britain, provided that:

"(a) the employer has a place of business at an establishment in Great Britain;

(b) the work is for the purposes of the business carried on at that establishment; and

(c) the employee is ordinarily resident in Great Britain (i) at the time he applies for or is offered the employment, or (ii) at any time during the course of the employment."

The Women & Equality Unit's publication repeats the comment made in the DTI's original consultation document as to the potential impact of these new provisions in respect of equal pay comparisons by employees working for British organisations outside Great Britain. It states: "In relation to claims concerning pay, where an employee attempts to make a comparison between workers in different countries, the claimant's work must be either work rated as equivalent, work of equal value or like work of a broadly similar nature. It remains possible for an employer to point to material factors other than sex to justify any pay differentials and prevent inappropriate cross-country comparisons. If there were genuinely no connection with the difference in sex then these defences would prevail."

This highlights how equal pay comparisons can be brought by employees working outside Britain, comparing their terms and conditions with those of employees either in Britain or in other countries, so long as the employer has an establishment in Great Britain and common terms and conditions are observed as between the relevant establishments (since that part of s.1(6) of the Equal Pay Act remains). This is unlikely to be of relevance on the shop floor, where there will not be common terms and conditions as between establishments. However, it might be of considerable significance for more senior staff, where an organisation might, for example, have a trans-European, or worldwide, system of bonus allocation or profit-sharing.

* Changes to Sex Discrimination Legislation in Great Britain.www.womenandequalityunit.gov.uk/legislation/ .