New clause 11 - Harassment by third parties
Equality Bill [Lords]
1:30 pm
Sandra Gidley (Women & Older People, Non-Departmental & Cross Departmental Responsibilities; Romsey, Liberal Democrat)
New clause 11 deals with harassment of employees by third parties and would ensure that the equal treatment directive was properly implemented in terms of harassment. New clause 12 would extend the protection of service users from harassment to the provision of services in both the public and private sectors.
The Government have amended the Sex Discrimination Act to make it unlawful for a public authority to undertake any action that constitutes harassment when it exercises a public function. They have also placed a positive duty on public authorities to have due regard to the need to eliminate harassment when carrying out their functions. The Government's amendments rely on the definition of harassment recently inserted into the Sex Discrimination Act by the Employment Equality (Sex Discrimination) Regulations 2005. Those regulations implemented the equal treatment directive, which came into force on 1 October.
Those are welcome moves, but the Equal Opportunities Commission has raised concerns that the interpretation of harassment adopted in the regulations is worryingly narrow. In particular, liability for harassment by third parties is covered only by the current statutory definition of harassment in very limited circumstances such as in employment and vocational training, if the employer or training provider fails to take preventive or remedial action because of the sex of the complainant. New clause 11 would address that sort of problem.
An example of how such a problem might arise is a situation in which a woman working in a local authority facility was harassed by a customer. Employers have a duty to prevent all such incidents, and one would hope that a good employer would provide a safe working environment for all staff. However, under the current provisions, that woman would have no grounds on which she could challenge her employer, unless she could prove that the employer would have treated a similar complaint from a male member of staff more favourably or could show that the employer might have taken preventive action to protect male employees in similar circumstances. In a situation in which the employer had failed to protect all members of staff from harassment, it is difficult to see how a woman could take action under the Bill as currently drafted. Moreover, there are some situations in which women might be more liable or vulnerable than men to harassment.
As the legislation is currently drafted, a woman is required to have a hypothetical male comparator before she can pursue any sort of case. However, other countries have interpreted the directive differently. One example is the Republic of Ireland, where there is no requirement for a comparator of the opposite sex in order to bring a claim, but solely a need to show that there was unwarranted conduct related to any of the discriminatory grounds.
New clause 12 would extend the harassment protection to users of goods, facilities or services in the public and private sectors under section 29 of the Sex Discrimination Act. That section currently outlaws sex discrimination in the provision of goods, facilities and services, but does not outlaw harassment. In due course, the Government will have explicitly to outlaw harassment in services provided by the public and private sectors, to comply with the goods and services directive, which will be implemented eight months after the gender equality duty enforcement date of April 2007. In April 2007, public bodies will have to apply the definition of harassment and, eight months later, they will have to include services covered by section 29 of the Sex Discrimination Act. It was seen that, as in all things, it would be much better to aim for some simplicity and the new clauses would achieve that result.