The Sex Discrimination Act 1975 (Amendment) Regulations (SI 2008/656) came into force on 6 April 2008. This makes changes to the Sex Discrimination Act 1975 by bringing in an amended definition of harassment, which removes any element of causation and requires only that the harassment be related to the sex of the victim or any other person.
This new definition of sex harassment has had lawyers scratching their heads as to possible situations in which this definition might apply… as what is the difference between harassment ‘on the ground of’ sex as compared to ‘relating to’ a person’s sex?
The motivation of the Regulations was to eliminate the issue of causation regarding sexual harassment. The phrase “on the ground of” required the conduct to be motivated by the victim’s sex whereas the phrase “related to” is associative, which can cover a wider range of conduct.
The example found is this: Where male colleagues dislikes a female colleague and decides to put office equipment on a high shelf to make it hard for her to reach, the former definition may not apply (because, say, the man is acting out of dislike of the woman and not because she is a woman) but the new definition would apply because the conduct of putting equipment on a high shelf relates to sex because woman are, on average, shorter than men.
Another example would be where a male manager follows a woman into the ladies toilets and harasses her. If he followed her into the toilets to shout at her this is likely to be conduct ‘relating to sex’ (as he has gone into the ladies toilet) but might not be conduct ‘on grounds of sex’ (as you would have to look at whether the reason he was shouting at her was to do with her sex !).
Its fair to say that it is still fairly confusing : but the bottom line has to be don’t tolerate any kind of harassment (whether on the grounds of or relating to a person’s sex) as it opens you up to a risk of a complicated and expensive claim!
For more detailed guidance please contact Emma Bramley of the Employment Team at Follett Stock on 01872 241700.
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