At the end of last week the Government laid before Parliament an amendment to the Sex Discrimination Act making some changes to the way in which sex discrimination works. Most of the changes are just fairly minor but one is really important. From 6 April this year an employer will be liable for sexual harassment against an employee acting in the course of employment even where the harassment is committed by a third party not employed by the employer.
There are essentially two conditions that must be met for the employer to be liable. Firstly the employer must have failed to take reasonably practicable steps to prevent the harassment. Secondly - and this is the odd bit - liability will only exist if the employer knows that the woman has been subjected to harassment by a third party (even if a different third party) on at least two previous occasions.
In other words, liability depends not on how careless the employer is in engaging contractors, but on the personal history of the employee!
This provision (and you can see the Regulations here) is a terrible idea. I’m all for introducing a concept of third party harassment but it needs proper consultation and debate to get the basis of the liability right. This botched attempt will just cause chaos in practice and some really silly results. Looks like we’re going to have to spend some time updating our Bullying and Harassment courses to take account of the changes.
Note that -as yet - the changes only apply in sex discrimination - not in discrimination based on the other strands. Expect a similar change in those areas, however, when the Government introduces a single equality bill.
