Ligestillingsudvalget 2016-17
LIU Alm.del Bilag 25
Offentligt
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Charles M Ramsden
Deputy Director
Government Equalities Office
Department for Education
Sanctuary Buildings
20 Great Smith Street
London SW1P 3BT
www.gov.uk/geo
Ministry of Employment
Ved Stranden 8
1061 København K
9 January 2017
Members of the Danish Parliament have asked three questions concerning the
United Kingdom’s policy on harassment and employer liability for third party actions
in the workplace.
As head of discrimination law in the Government Equalities Office – the Department
responsible for equalities policy in Great Britain (Northern Ireland is responsible for
its own legislation) - I offer the following responses to the questions posed:
1) What are the experiences and conclusions from the British provision on
the employer’s indirect liability in sexual harassment cases?
At the time of the repeal of the “third party harassment” provision in the Equality Act
2010 (section 40(2) to (4)), in October 2013
1
, only one such case had been brought
to the then Government’s attention. Keen to reduce burdens on employers and
believing that the Equality Act’s wider harassment prohibitions offered sufficient
protection to employees where someone other than the employer was the harasser,
the decision to repeal the express prohibition was made by Parliament.
More generally, in terms of existing rules on indirect liability of employers relating to
sexual harassment, section 26 of the Equality Act (link:
http://www.legislation.gov.uk/ukpga/2010/15/section/26) sets out a broad definition
that the UK Government believes would cover circumstances where the alleged
harassment was not done by the employer but by someone else. Under section 40,
this definition is used to prohibit harassment of employees at work. Courts and
tribunals have to balance competing rights on the facts of a particular case where an
action is brought by an employee. Despite the repeal of the third-party harassment
provisions, an employee might argue that their employer's inaction in the face of
third-party harassment itself amounted to an unlawful act, using the broad definition
in section 26.
1
See section 65 of the Enterprise and Regulatory Reform Act 2013.
 LIU, Alm.del - 2016-17 - Bilag 25: Kopi af BEU alm. del - bilag 94 om opfølgning på (2015-2016) BEU alm. del - svar på spm. 526 af 26/9-2016 om de britiske erfaringer om arbejdsgiveres indirekte ansvar i sager om seksuel chikane, fra beskæftigelsesministeren
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In addition, on vicarious liability, anything done by an employee in the course of their
employment is treated as having also been done by the employer (section 109(1) of
the Equality Act), regardless of whether the employee's acts were done with the
employer's knowledge or approval (section 109(3)). However, it can then be a
defence for the employer to show that they took all reasonable steps to prevent third
employees (for example middle managers) from acting unlawfully and will not be
held liable (for example having a policy in place on sexual harassment which
employees are aware of). Also, employers cannot be held liable for criminal offences
committed by their employees.
2) How has the provision affected the effort of the employers to prevent
work-related sexual harassment?
The Government has not researched this point, although independent bodies such
as the Trades Union Congress have published reports that include references to this
issue. Although the Government does not officially endorse the TUC’s report, to
assist the Danish Parliament, I attach a link to it:
https://www.tuc.org.uk/sites/default/files/SexualHarassmentreport2016.pdf
3) How is the development in the number of incidents of sexual
harassment?
The Government does not collect the detailed data needed to answer this question.
Not all incidents are reported and those that progress to employment tribunal are
classified as “sex discrimination” with no sub-categories.
Charles M Ramsden
Head of Equality Framework Team