Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2008
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Harassment - Third Party and Employer’s Conduct
As a result of these Regulations, employers in areas where contact with third parties is part of daily life, such as retail, hotel and restaurant industry, should take stock of whether their employees are potentially at risk of being subject to sex based harassment from third parties. This would be especially so in areas where sex based harassment by customers could be likely, such as in bars, clubs, health clubs or reception areas.
There are two conditions on liability:-
1. There must have been two prior incidents of harassment which are not necessarily perpetrated by the same person.
For example, an employee working in a bar might notify her employer that she has been subjected to offensive sex related harassment by two different customers on two separate occasions. If the employer takes no or insufficient action to prevent further sex-related conduct by customers and the employee suffers a further incident, the employee would have the basis of a Tribunal claim.
The Explanatory Memorandum states that employers should not be held liable for conduct “beyond their control” but does not state what conduct would be beyond their control, or does not set out what kind of reasonable practicable steps the employer must take to avoid liability. It may be that employers in the retail, hotel and restaurant industry, where contact with third parties is part of daily life, will need to make clear to actual and potential customers and outside contractors that subjecting staff to a sense of an unwanted conduct will not be tolerated and that appropriate measures will be taken. Possible measures could include placing signs or ensuring that supervisors are available in places where sex-related harassment is likely to take place.
2. The employer must know that the two prior incidents of harassment have taken place.
It is envisaged that there will be some debate about whether an employer “knew” about previous incidents of harassment. If harassment of an employee is taking place in from of a manager it would seem likely that the employer would be treated as knowing about the harassment without the employee having to formally notify the employer of the incident.
In considering these issues, employers should take note that the statutory definition of sex-related harassment has been amended. The amended definition applies equally to sex based harassment perpetrated by an employer or by a third party.
The previous definition of harassment was that a person subjects a woman to harassment: if, on the grounds of her sex, he engages in unwanted conduct that has the purpose of violating her dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The new definition provides that a person subjects a woman to harassment where he engages in unwanted conduct that is related to her sex or that of another person. Therefore, a person complaining of harassment under the SDO is no longer required to show that the alleged treatment took place because the Complainant was a woman (or a man). Connection or association with either sex will give sufficient basis for a harassment claim.
The Explanatory Memorandum to the Regulations give as an example a situation where male colleagues dislike a female colleague and decide to put equipment on a high shelf to make it harder for her to reach. The previous definition may not apply to this treatment because the men are acting out of dislike for the woman and not because she is a woman. The treatment is therefore not on the grounds of her sex. However, the new definition may extend to such conduct on the basis that it is related to the woman’s sex, because women are on average shorter than men. It should be noted however, that the effect of such conduct is tested on an objective basis and that Tribunals are therefore able to refuse to give a remedy to unusually sensitive victims in claims based on Tribunal incidents that ought not to be considered harassment.
Pregnancy and Maternity Leave
Employers will also need to review their practices and policies in relation to pregnancy and maternity leave.
The Regulations remove the requirement for a woman claiming less favourable treatment on the grounds of pregnancy or exercising the right to maternity leave to compare her treatment to that of a woman who is not pregnant or not exercising a right to maternity leave. Now a woman need only show that the less favourable treatment is by reason of her pregnancy or her exercising her right to maternity leave. The Explanatory Memorandum gives as an example the situation where a pregnant woman’s employer refuses to allow additional toilet breaks while pregnant or whose job involves heavy lifting which she is unable but still required to do while pregnant. Such woman may now have a claim under the new Regulations.
Another example would be if a pregnant woman applies for promotion and is unsuccessful because of her pregnancy. Such a person will now have grounds to complain under the Regulations in addition to any claim of sex discrimination which she might have had prior to the Regulations and will not have to compare herself to a male applicant.
The Regulations also give additional protection to women on maternity leave by allowing for claims specifically on the grounds of maternity leave, which are already permitted under European Case Law. Previously, the SDO contained a number of exceptions to a woman’s right to claim discrimination in relation to her terms and conditions during employment or during maternity leave. The Regulations will now allow for a claim for discrimination to be brought in respect of the non-payment of a discretionary bonus for the two week compulsory maternity leave period following childbirth.
In addition, prior to the Regulations, a woman’s terms and conditions, except for those relating to normal remuneration, continued to apply during Ordinary Maternity Leave (OML), with more limited contractual rights applying during Additional Maternity Leave (AML). This distinction is now removed so that the terms and conditions applying during OML will continue to apply during AML, allowing a woman to bring a claim of unlawful discrimination if this is not the case. Accordingly, employers who remove benefits during AML that are available during OML such as company cars, gym membership and health insurance could now face claims for unlawful discrimination.
These changes will apply to women in Northern Ireland whose expected week of childbirth begins on or after 5th October 2008. Although legislative measures are already in place to protect pregnant workers and workers on maternity leave, it is suggested that employers review their policies and practices to ensure they also comply with the new Regulations.
If you would like to discuss any of the issues raised in this article, please contact Sharon McArdle, Associate Solicitor, Employment Department, on Belfast 028 9055 3300 or by email, sharon.mcardle@tughans.com.
The content of this article is provided for information purposes only and does not constitute legal or other advice.