Dr Stephen Hardy, Senior Lecturer in Law at the University of Manchester and a Barrister specialising in employment and EU labour law takes a look at what can be expected in the silly season by way of litigious parties.
Recently the EAT saw sense and decided that discussion of a pay increase during a Christmas party was not a binding undertaking or an agreed variation to the contract of employment. However, on 1 October 2005 the Employment Equality (Sex Discrimination) Regulations came into force. These new Regulations seek to redefine harassment.
The revised definition includes “unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect of creating and intimidating, hostile, degrading, humiliating or offensive environment.”
Harassment?
Previously, harassment at work had to be brought under the auspices of the Sex Discrimination Act. Consequently, showing that you had been less favourably treated than the opposite gender in a comparable situation was the applicable test.
This new set of Regulations not only provides a definition of indirect sex discrimination, it applies sex discrimination to vocational training, employees of UK companies working abroad, and sets a strict eight week timetable for responding to questionnaires relating to discrimination and harassment. All in all, these changes bring the old Sex Discrimination Act 1975 fully in line with the 2002 Equal Treatment Directive.
New rules, new approaches …
As ever, HR now has to find a new thinking, since this wider, all encompassing definition seeks to catch those who have workplace affairs and/or push professional parameters to the wayside. Employers must now monitor more seriously relations at work. For one simple reason – high damages for failing to enforce. The only defence is that the employer took all reasonably, practicable steps to prevent the harassment.
So the ultimate test for this new approach arises shortly with the oncoming of Christmas parties, notorious breeding grounds for harassment claims. It most certainly issues a death knell to those employees who download pornography contrary to an existing company policy. Should such employees be observed by others who feel intimidated for whatever reasons by these images, then harassment has been satisfied.
To that end, HR practitioners need to continue to clearly spell out at regular intervals the policies relating to harassment. Moreover, these are sensitive issues and should be treated as such. The ill-fitting old adage, delicate hands makes light work, causes harassment. And so, commonsense and decency should prevail during and after the forthcoming silly season.
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