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This essay will critically evaluate the current law on sexual harassment in the workplace. It will do this by focussing on the definition, subjective/objective test, employer’s vicarious liability, complaints, standards of proof and equal opportunities.
Sexual harassment is the unwelcome conduct from one person to another that could include comments about a person’s appearance, inappropriate touching or a more serious indecent assault, sexual invitations, abusive or sexual remarks, leering, exposure to indecent images etc.
Sexual harassment is defined in s 4A(1) of the Sex Discrimination Act 1975 as inserted by the Employment Equality (Sex Discrimination) Regulations 2005.
The Sex Discrimination Act 1975 (Amendment) Regulations 2008 that came into force on 6 April 2008 further amended this Definition. The act defines two types of offences:
Where he engages in unwanted conduct that is related to her sex or that of another person and has the purpose or effect of violating the dignity of a person or of creating an intimidating, hostile, degrading, humiliating or offensive environment.
The unwanted conduct in this definition need not be of a sexual nature. It also allows for a claim where the person’s dignity is violated or where an intimidating environment has been created. The person making the claim does not necessarily have to have been the subject of the unwanted conduct.
This amended definition no longer requires that a comparative treatment needs to be established between the opposite sexes unlike the 2005 definition that included the phrase “on the grounds of her sex”.
Where he engages in unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect of violating the dignity of a person or of creating an intimidating, hostile, degrading, humiliating or offensive environment.
This definition only requires the conduct to be of a sexual nature to person who is claiming sexual harassment.
Strathclyde Regional Council v Porcelli
Prior to the 2005 a claim of sexual harassment relied on the principles in the decision of Strathclyde Regional Council v Porcelli (1986) where the court took the view that the applicant had been treated less favourably on the ground of her sex and that a man would have been treated differently and found in favour of the applicant.
The most recent amendments now remove the casual link between harassment and the sex of the person being harassed.
This, on the face of it, appears to make a claim of sexual harassment less complicated, as it is only necessary to prove that the conduct was related to her sex or indeed sexual in nature and had a negative effective on the environment.
The difficult process of proving that conduct was less favourable in relation to the opposite sex, has now been removed and may increase the number of legitimate claims as people have more faith in the system.
Sexual harassment is subject to case law
The issue of exactly what conduct constitutes sexual harassment is subject to case law. In Reed & Bull Information Systems v Stedman (1999), Ms Stedman resigned because of sexually provocative remarks made to her. The Employment Appeals Tribunal held that it was for Ms Stedman to decide what was acceptable or offensive.
In Moonsar v Fiveways Express Transport Ltd (2005) male staff members downloaded, pornographic images which the claimant became aware of although the images were not actually sent to her. The EAT held that, viewed objectively, as she was nearby and aware what was happening, this amounted to harassment.
Whilst sexual comments or literature could objectively be considered offensive, subjectively all people are not offended by similar events. The test as to whether certain conduct amounts to harassment, must consider, both, the objective considerations of the conduct being offensive in addition to the subjective views of the complainant.
Employers can become liable for acts of harassment by their employees even if they were not aware of the fact. Vicarious liability in relation to sexual harassment is defined in s 41(1) SDA 1975. This type of liability compels an employer to take seriously the issue of harassment against its employees.
Harassment is not only restricted to working hours. In Chief Constable of the Lincolnshire Constabulary v Stubbs and Others (1999), the harassment took place immediately after work hours in a public house. The EAT found that such social gatherings either after work or for an organised leaving party took place in the course of the officers employment.
Also from 6th April 2008 there is provision to make employers liable for acts of sexual harassment from third parties such as customers as long as the harassment has taken place at least twice before.
This gives further protection to employees but raises the issues of how a person who works in a call centre, for example, can be protected from sexual harassment? The twice before rule is not confined to the same person making the comments. In a similar position are bar owners who’s staff are in an environment that is very hard to control.
Employers can obtain guidance from The Equal Opportunities Commission and from the European Commission Code of Practice: Protecting the Dignity of Women and Men at Work (1191) (92/131/EEC).
A crucial step for employers to take is to ensure that they have an effective equal opportunities policy. In Balgobin and Francis v London Borough of Tower Hamlets (1987) the complainants argued that their employer had failed to take reasonably practicable steps, as the male colleague who they accused of harassment had not been moved from his position. The EAT considered that the employer had an adequate equal opportunities policy in place and disagreed with their claim.
In another case, Waters v Commissioner of Police of the Metropolis (2000) Lord Hutton made reference that not all employers would be liable…unless he knows or ought to know that the harassment is taking place and fails to take reasonable steps to prevent it.
The employer, in order to prevent vicarious liability, would in accordance with s 41(3) SDA 1975, have to prove that it took all reasonably practicable steps to prevent the unlawful act.
The best course of action would be to have and keep updated an equal opportunities policy. The EOC codes are not compulsory although failure to implement the recommendations in the EOC code could be used in evidence in a court of law
A victim of sexual harassment at work, in the first instance, would have to raise a written grievance with their employer in accordance with the Employment Act 2002 and then wait 28 days for a reply. An exception to this would be when it would cause further harassment.
This was the case in Insitu Cleaning Co Ltd v Head (1994) where the EAT found for the complainant when she felt unable to follow this procedure after suffering an insulting sexual remark. The tribunal recommended that the company should find another method other than the grievance procedure in harassment claims.
Section 63A of the SDA 1975 was inserted into the act as a result of the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 that implemented the EU Burden of Proof Directive 97/80/EC that sets out the burden of proof requirements.
It provides that a complaint by a person, that another has committed an act of unlawful discrimination and the complainant proves facts that the tribunal could conclude in the absence of an adequate explanation has so occurred, that the tribunal will uphold the complaint unless the respondent proves that he did not commit the act.
To summarise, the law on sexual harassment has undoubtedly progressed since 1975 with the 2008 amendments making it less onerous to prove that this type of conduct amounts to sexual harassment. The burden of proof is now weighted in favour of the claimant. These aspects remove the barriers that may have put off legitimate claimants. The new amendments are in their infancy and it remains to be seen if the number of cases for sexual harassment increases because of these changes.
Both Ron and Fred have both pleaded guilty to separate incidences of theft.
The Theft Act 1968 defines theft as “dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it”.
Section 7 of The Theft Act 1968 imposes a prison term not exceeding seven years on conviction on indictment. The maximum custodial term on summary conviction in a magistrate’s court is six months.
Consideration should be given to the penal theories of retribution, deterrence, rehabilitation, retribution or incapacitation in both these cases.
The crimes were both against organisations and in Ron’s case, the goods were returned. In Fred’s case, the goods or money would not be traceable and so reparation would probably not be appropriate in these cases.
The purposes of sentencing are defined in section 142(1) of the Criminal Justice Act 2003 which lists the following that courts must have regard to-
(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their offences.
In determining the seriousness of the offence, s 143(1) states that
‘the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might forseeably have caused.’
If the court considers the offence serious enough, a community order can be imposed. A custodial sentence can be imposed if the court considers the offence so serious that a fine or community order would not suffice.
The court will look at degrees of both culpability and harm that occurred in the offences.
The court recognises four levels of culpability that are:-
Intention to cause harm
Recklessness as to whether harm is caused though not intending to cause the harm that resulted
Knowledge of the risks
In considering the degree of harm in the offence of theft the court will consider that the greater the loss then the more serious the offence.
The judge will then weigh up both the aggravating and mitigating factors of the crime.
In Ron’s case, there is a low level of both culpability and harm. He had knowledge of the risk but did not intend to cause harm. There was no direct harm to an individual; the victim was a large superstore. There was no planning, as the crime was committed spontaneously.
In personal mitigation, he was convicted of a number of offences unrelated to theft some 11 years ago but had since returned to studying and gained qualifications, settled down with a young family and has a good employment record. Unfortunately, he was made redundant and was on benefits and in the process of selling his house to move into rented accommodation.
Ron pleaded guilty to the theft at an early stage and cooperated with the police investigation. He bitterly regrets his actions.
Ron’s crime was motivated by financial pressure not of his own making and this should be considered in sentencing. The crime is low level and he did not dispose of the goods or get any benefit from them. It would be difficult to warrant a custodial sentence.
Fred crime has a high level of culpability. His was a breach of trust, he acted intentionally and dishonestly and his primary intention was for personal gain irrespective of the harm to his employer. His was motivated by greed and a desire to live beyond his means. His crime continued over a period of five years and represented a sustained and deliberate course of action.
There was a high level of harm. The value of the equipment was considerable.
The court will note when sentencing that Fred did not admit guilt until halfway through his Crown Court trial. He did not cooperate during this time, has shown no remorse for his actions, and has in fact shown contempt to his employers.
Strathclyde Regional Council v Porcelli (1986) IRLR 134
Reed & Bull Information Systems v Stedman (1999) IRLR 299
Moonsar v Fiveways Express Transport Ltd (2005) IRLR 9
Chief Constable of the Lincolnshire Constabulary v Stubbs and Others (1999) IRLR 81 EAT
Balgobin and Francis v London Borough of Tower Hamlets (1987) IRLR 401
Waters v Commissioner of Police of the Metropolis (2000) IRLR 720 HL
Insitu Cleaning Co Ltd v Head (1994) IRLR 4 EAT
Arthur, Raymond and Howells, Carol, The Open University (2008), ‘Unit 16 Civil Sanctions’, Block 5 Sanctions, W100 Rules, rights and justice, Milton Keynes, The Open University, pp. 7-32.
Cuthbert, Leslie, The Open University (2008), ‘Unit 17 Criminal Sanctions ‘, Block 5 Sanctions, W100 Rules, rights and justice, Milton Keynes, The Open University, pp. 35-66.
Legge, Debbie and Zambellas, Amanda The Open University (2008), ‘Unit 18 Discipline in organisations: sexual harassment’, Block 5 Sanctions, W100 Rules, rights and justice, Milton Keynes, The Open University, pp. 69-95.
The Open University (2008) ‘Unit 17′ W100 DVD, W100 Sanctions, Milton Keynes, The Open University (DVD).
Reading 24-44, pp108-214, Reader 2, W100 Rules, rights and justice, Milton Keynes, The Open University.
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