Employers must be proactive in stopping third-party sexual harassment to employees, or risk discrimination claims. Richard Nicolle explains
Since 6 April 2008, employers may be vulnerable to damages claims from their employees if they knowingly fail to protect them from repeated sexual harassment by a third party. If customers or clients harass staff, they can sue their boss.
The Employment Equality (Sex Discrimination) Regulations 2005 (SI 2005/2467) (2005 Regulations) amended the Sex Discrimination Act 1975 (SDA 1975) to implement the European Equal Treatment Amendment Directive (the Directive) which expressly prohibited sexual harassment. However, in 2007 the Equal Opportunities Commission (EOC) mounted a successful challenge to the 2005 Regulations in the High Court (Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] EWHC 483 (Admin), [2007] IRLR 327).
The court found that the 2005 Regulations did not adequately provide the protections required by the Directive or reflect the government's interpretation of the domestic provisions as set out in their own guidance. The court's decision
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