Sex discrimination: harassment case study

Kate Brittin of Lewis Silkin continues her series of articles on sex discrimination by looking at a hypothetical harassment claim.

Scenario

Sara is a 21-year-old woman who joined the IT department of Blog Co at the beginning of October 2005. The other employees in the department, including her line manager, are male. The IT employees all work in one open-plan office.

After only three weeks in the job, Sara complains to the HR department that some of her male colleagues, including her manager, spend a considerable proportion of their time poring over and discussing sexually explicit images downloaded from the internet. Sara accepts that these activities are not directed at her personally, but they do make her feel extremely uncomfortable.

Sara says that she has not said anything to her colleagues because she has been too embarrassed. In any event, she has been anxious not to create a bad impression when she is so new in the job. However, she feels very angry about her working environment and is threatening to bring a sexual harassment complaint unless the men are either dismissed or relocated to a different part of Blog Co's premises where she will have minimal contact with them.

Is Sara's colleagues' conduct unlawful?

Assuming that Sara's allegations are correct, she does have a potential claim under the Sex Discrimination Act 1975 in respect of the conduct of her male colleagues.

As her claim would relate to events after 1 October 2005, the new definition of 'sexual harassment' that came into force on this date would apply. The Sex Discrimination Act 1975, section 4A(b) states that 'a person subjects a woman to harassment if…[the person] engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect of violating her dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her'.

Under the old law in force prior to 1 October 2005, Sara could have brought a claim under the Sex Discrimination Act 1975, section 1(1), alleging that the conduct was direct sex discrimination.

The major difference under the new law is that she no longer has to prove that she found her colleagues' behaviour more offensive than a man did, or would have done. Under the new law, where conduct is 'of a sexual nature' no comparison need be made. The importance of the change is highlighted by Brumfitt v Ministry of Defence and another [2005] IRLR 4 EAT. Here a male manager used obscene language to both male and female staff on a training course. Ms Brumfitt's sex discrimination claim failed because the tribunal believed that men would have been just as offended by the behaviour as she was. Similarly, in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 EAT a woman claimed that displaying pictures of nude and semi-nude women on the walls of the factory where she worked amounted to sex discrimination. Her complaint was rejected on the grounds that the offensive pictures were 'gender-neutral' and a man might well find them as offensive as she did.

A tribunal is likely to find that viewing and discussing pornography in an open-plan office is 'conduct of a sexual nature'. If Sara can persuade the tribunal that it was 'unwanted' and that it either violated her dignity or 'created an intimidating, hostile, degrading, humiliating or offensive environment for her', Blog Co and its employees could well be in trouble.

Sara has not told her colleagues that she finds their behaviour offensive, so will this be fatal to her case?

The Sex Discrimination Act 1975 now says that 'unwanted' conduct of a sexual nature will be harassment if 'having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect'.

Some types of conduct will be 'unwelcome' without any obligation on a woman to make it clear that she finds the conduct unacceptable. The type of behaviour experienced by Sara may well fall into this category. In other cases, the woman will need to say that she finds the conduct offensive, in which case there will be unlawful harassment only if it is repeated. Tribunals will take into account that employees may be reluctant to complain, and may choose to remain silent in the face of harassment for fear of reprisals if they complain directly to their harassers. This may be particularly so in Sara's case where one of the culprits is her line manager.

Can Blog Co be held liable for its employees' actions?

The Sex Discrimination Act 1975, section 41(1) remains unchanged by the 1 October 2005 amendments and makes an employer liable for the discriminatory acts of its employees done 'in the course of [their] employment' whether or not those acts are done with the employer's knowledge or approval. This is often referred to as 'vicarious' liability.

An employee who harasses another member of staff while at work will invariably be acting 'in the course of employment' so that, in Sara's case, if she succeeds in establishing that the behaviour of her work colleagues amounts to harassment, Blog Co will be vicariously liable for it. It should also be noted that the men could also be held personally liable under section 42(2) as having 'aided' the company's unlawful act.

There is, however, still the defence for employers under the Sex Discrimination Act 1975, section 41(3), which also remains unchanged by the 1 October 2005 amendments. This provides that an employer will not be vicariously liable if it can prove that it took such steps as were 'reasonably practicable' to prevent its staff from doing the discriminatory acts in question.

In the context of sexual harassment, this would include having an effective anti-harassment policy in place and taking effective steps to ensure that it is followed in practice. Employment tribunals will generally look to see if policies have management backing, are distributed and explained to all members of staff and are supplemented by adequate training of supervisory staff. In essence, an anti-harassment policy will need to make it clear what harassment is, that it is unlawful, that it will not be tolerated and that it may result in disciplinary action. It should also provide appropriate informal and formal channels for complaints to be made and effective procedures for investigating and resolving such complaints.

Blog Co may have a harassment policy in place or have another relevant policy, for example one banning the viewing or downloading of internet pornography. If not, the company will be very poorly placed to use the section 41(3) defence.

What should Blog Co do now?

As the company is now aware of what has been happening to Sara, it is under an obligation to investigate the situation and take appropriate measures to prevent any further occurrences. If it does not, it will be very much more exposed to liability if a similar situation occurs in the future.

Dismissal of the harassers

Sara has suggested that her three colleagues should be dismissed. In what circumstances is an employer entitled to dismiss an employee who uses the internet to download pornographic images or text?

If there is a disciplinary or computer-use policy that expressly states that the downloading and/or circulation of pornography is gross misconduct, dismissal could be an option.

However, in the absence of such a clear policy, it is unlikely that a first offence of using the internet at work for these purposes will be grounds for summary dismissal at common law (though this will depend on the workplace and the type of images being accessed).

Similarly, it might be difficult to establish that a dismissal on grounds of misconduct is not an unfair dismissal in the absence of a clear policy or previous warnings about misuse of the employer's IT resources.

However, the position may be different if the pornographic material in question is really extreme or if it could lead to criminal action, for example if it involves children. In this case dismissal, either summary or with notice, could be lawful regardless of whether or not the employer has specific rules relating to use of the internet in this way.

Whatever disciplinary or dismissal decisions it takes about the culprits, Blog Co must ensure that it complies with the new dispute resolution procedures. The procedures apply to dismissal and disciplinary decisions (including relocation, but excluding warnings). If the statutory procedures are not followed, any dismissal will be unfair, although the qualifying period of one year's service to bring an unfair dismissal claim will still apply.

As well as these statutory procedures, all the normal unfair dismissal rules apply. This means that Blog Co will need to show a fair reason for dismissal and that the dismissal was 'within the band of reasonable responses'. It must also follow a fair and proper procedure, which may require it to do more than simply follow the statutory disciplinary procedures.

Relocation of the harassers

Sara's alternative suggestion is that the men should be relocated so that she is not required to work alongside them in future. Anti-harassment policies frequently provide that the employer is entitled to relocate an individual who is found guilty of harassment in order to separate the individual from the victim.

This may be a potential solution in Sara's case, although this will depend on the practicalities of splitting up the members of the IT department. It may be essential for operational reasons for them to be located in the same office.

In any event, if the men are relocated because of their behaviour, this would be 'relevant disciplinary action' under the statutory dispute resolution procedures. The standard procedure would have to be followed prior to any relocation being implemented.

Relocation of Sara

Another possible solution would be for Blog Co to transfer Sara to an alternative position within the company. However, this might constitute a breach of contract unless there is an appropriate flexibility clause in her contract of employment or Sara agrees to the move. It might in any event amount to victimisation under the Sex Discrimination Act 1975 if it is viewed as subjecting her to a detriment for having raised a complaint that she was being harassed.

Next week's article will answer frequently asked questions on indirect sex discrimination.

Kate Brittin is a member of the Employment Team at Lewis Silkin (Kate.Brittin@lewissilkin.com)

Further information on Lewis Silkin can be accessed at www.lewissilkin.com