Employment Law

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Table of Cases

Balgobin v Toer Hamlets 1987

Broadbent v Crisp (1974) (Nairns p105)

Burton and Rhule v de Vere Hotels [1996] (Nairns p 63)

De Souza v AA (1986)).

Jones v Tower Boot co. 1997

Lincolnshire Police v Stubbs [1999] IRLR 81, EAT

Livesey v Parker Merchanting Ltd

Mrs Rea Moonsar v Fiveways Express Transport Ltd (2004)

Porcelli v Strathclyde Regional Council (1984)

Waters v Commissioner of the Metropolis (1997)

Whitttaker v Minister Pensions and National Insurance (1967) (Nairns p 107)

The concept of harassment did not figure in the original anti-discrimination legislation, American legal theories were influential to the formation of harassment laws in Britain. The American Equal Opportunities commission identified sexual harassment as being unwelcome sexual advances that rejection of which would hinder the recipient’s employment and conduct that created a hostile or intimidating working environment. In British law the idea of harassment was became realised as a form of direct sex or race discrimination on the account that it amounted to treating a person less favourably on the grounds of sex or race (see Porcelli v Strathclyde Regional Council (1984); De Souza v AA (1986)).

Only recently has the types of actions that equate to sexual harassment been statutorily defined. There are potentially three main methods by which an employer can be made liable for sexual harassment of his employees or potential employees under the Sex Discrimination Act 1975 (SDA): first, direct liability, whereby the employer is responsible for his own acts of sexual harassment, or for any sex discrimination in the treatment of complaints of sexual harassment. An example of this being Greig v Community Industry (1977) were a female painter was dismissed as her employer thought that it would not be good for her to be the only female in the team. Secondly, where the employer is held responsible for sexual harassment committed by his employees in the course of their employment (see vicarious liability). Finally, the employer will be held liable for sexual harassment by an agent that is under the authority of the employer (Pitt 2007).

Regulation 5 of the Employment Equality act Regulations of 2005 inserted a new section 4A into the SDA 1975. This section states that a person subjects a woman to sexual harassment if: a) On the ground of her sex, he engages in an unwanted act or conduct that has the purpose or effect of-

i) Violating her dignity, or
ii) Creating a hostile, humiliating, degrading, intimidating or offensive environment for her

b) He engages in any form of unwanted verbal, non-verbal or physical or physical conduct of a sexual nature that has the effect or purpose of-
i) Violating her dignity or
ii) Creating a hostile, humiliating, degrading, intimidating, or offensive environment for her

c) on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would have treated her had she not rejected, or submitted to, the conduct (Nairns, 2008). The claimant will have to prove certain things about the harassment to the employment tribunal. In a claim brought under the second limb of the definition, set out in s.4A(1)(b), (described by the DTI guidance as "sexual harassment"), the questions are: Was the conduct unwanted? Was it non-verbal, verbal or physical conduct of a sexual nature? Did the behaviour have the deliberate intention of violating the claimant's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her? Or Did the conduct...
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