New clause 11 - Harassment by third parties
Equality Bill [Lords]
1:30 pm
Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)
I want to say at the outset that members of the Committee should be in no doubt that the Government believe that harassment is abhorrent and should not be tolerated. However, I shall explain why we are not minded to accept the new clauses. As the hon. Lady said, the Employment Equality (Sex Discrimination) Regulations 2005 came into effect on 1 October 2005. They inserted into the Sex Discrimination Act 1975 the definition of harassment, including sexual harassment. Until then, case law had established that certain forms of unwanted behaviour carried out because of a person's sex constituted harassment and amounted to sex discrimination for the purposes of the Sex Discrimination Act. That definition applies to employment and vocational training only.
The definition of ''harassment'' under the Sex Discrimination Act mirrors the definition under the Bill. It outlaws discrimination in employment on the grounds of race, sexual orientation, religion and belief. The same approach is being taken in forthcoming legislation on age discrimination in employment. Under discrimination law, harassment is when a person subjects another to unwanted conduct, which has the purpose or effect of violating the other person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
Under the Sex Discrimination Act, harassment is unwanted conduct on the grounds of the victim's sex. The Act also outlaws sexual harassment, which is unwanted verbal, non-verbal or physical conduct of a sexual nature, a concept that applies in sex discrimination only. Section 41 of the Sex Discrimination Act makes an employer liable for an act of discrimination or harassment carried out by another, as long as that person is employed by him and carries out the act in the course of his or her employment.
New clause 11 would extend that precarious liability further to cover sexual harassment by third parties. It would mean, for example, that if a client subjected an employee to sexual harassment and the person's employer does not take reasonable steps to prevent the third party from doing that, the employer would be liable for the act of sexual harassment. In practice, an employer would be liable for acts of sexual harassment carried out by others, over whom he has no direct control. That would be a significant extension of the law and its desirability would need to be considered carefully.
For example, is it justifiable for an employer to be held liable when the harassers themselves face no sanction for their unacceptable behaviour? If that were considered to be a fair way in which to approach the matter, how would the employer know whether he had taken reasonable steps to prevent the harassment from occurring and, thus, had stayed within the law? We need to consider such matters carefully before deciding whether there is a need to extend the scope of the harassment provisions in the way proposed by the new clause.
We want to ensure that greater consistency is achieved by the protection afforded to different groups, whenever that is appropriate. The new clause would not only put sex discrimination legislation significantly out of step with legislation covering the other equality strands, but would lead to inconsistency within the Sex Discrimination Act itself. That raises the question why consideration of that extension of the law should apply only to sexual harassment. The principle of third-party harassment would also apply to harassment on the grounds of sex and harassment in the other equality strands. For both reasons, we believe that the discrimination law review is the appropriate vehicle by which to give full and proper consideration to such issues. We would need, in particular, to consider whether the approach suggested in the new clause assigns responsibility for third party harassment in an appropriate way.
Section 29 of the Sex Discrimination Act makes it unlawful to discriminate on grounds of sex in the provision of goods, facilities or services. New clause 12 would extend that provision to make harassment in the provision of goods, facilities or services unlawful, too. The Government support the principle behind the new clause. Indeed, we are already committed to bringing in protection in that regard, but we consider that now is not the right time to do so. As I have made clear, we are considering harassment, including sexual harassment, in the discrimination law review. I am sure that members of the Committee will be aware by now that a key objective of the review is to remove unjustified inconsistencies in the protections afforded to different groups of people. That is the light in which we shall consider harassment.
Through the review we are consulting with a range of stakeholders, and it is vital that we consider their perspectives. It will help us to ensure that goods and service providers are aware of and prepared for any new responsibilities that they may have. On that basis, will the hon. Lady withdraw the motion?