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THIRD PARTY SEXUAL HARASSMENT
November 2008
HARASSMENT
THIRD PARTY SEXUAL HARASSMENT
Recent changes to sex discrimination legislation have tightened up your duty to protect staff from third party sexual harassment. Whilst this might sound all well and good in theory, how can you go about doing this in practice?
Where do you start?
In a recent issue we advised that change to the Sex Discrimination Act 1975 had altered how sexual harassment is defined. Unfortunately the end result for employers is that its definition has been expanded to protect those who are “victims” of third party sexual harassment, e.g. from customers or suppliers. This might be noble aim on paper, but how can you be expected to police it? It can be hard enough to get your staff to toe the line, never mind deal with those who you have little control over. So what steps can you take to protect your own position?
Legal overview
Your potential liability as an employer arises from the Sex Discrimination Act 1973 (Amendment) Regulations 2008. Regulation 4 states that the circumstances where a woman is deemed to have been subjected to harassment will include (1) where the harasser is a third party/ / (2) where the harassment occurs in the course of her employment and: (3) where you failed to take reasonably practicable steps to prevent it. We won’t know what qualifies until case law develops. What is certain is that taking appropriate steps to reduce the risk is better than suffering a tribunal claim.
Reducing the risk. So what steps can you take to reduce the likelihood of a problem occurring in the first place? Update your harassment policy and brief staff on the changes. Make managers aware that they must act quickly should they receive such a complaint.
Tip. Add a new paragraph as follows: “New legislation introduced in April 6 2008 has expanded the definition of sexual harassment to protect women who are victims of third parties. This is provided that the acts complained of occur on at least two occasions and within the course of her employment. In the event of a problem, an employee should inform her line manager of what occurred. An investigation into the complaint will be undertaken and the employee will be advised of its outcome. If necessary, the third party’s employer will be contacted and advised of the matter.”
Dealing with complaints
If you receive a complaint don’t delay. Meet with the employee and ask her to explain what happened. If it is not clear as to why she has found the behaviour offensive, do not be afraid to ask her questions. If the behaviour does seem to constitute sexual harassment, ask if there were any witnesses and if they are willing to come forward before you approach the third party in question. If you decide that she’s over sensitive or is just trying it on, explain why you are not going to take any action.
Tip. Keep file notes of any complaints made about alleged sexual harassment, along with your response. Remember that if an employee submits a grievance about the alleged sexual harassment, you will need to follow the statutory process.
Add a clause to your harassment policy that covers third party harassment and brief managers on what you expect of them. If you do receive any complaints, investigate them promptly and keep a written record – just in case.
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