Protection from Racial and Sexual Victimisation

Title: Critically evaluate the protection afforded by the Sex Discrimination Act 1975 and the Race Relations Act 1976 and the subsequent decisions under these Acts for victims of sexual and racial harassment. You must consider how harassment is treated under the Acts, the difficulties in making a claim as well as remedies.

Introduction

Harassment can take many different forms which can range from ranging from simply ignoring a victim to subjecting them to unwelcome attention, humiliation, intimidation, humiliation, or ridicule. Extreme forms of harassment may include physical threats or violence. It may consist of a single incident or of a series of incidents.^[1]

Behaviour which may seem trivial in the context of a single incident, can constitute harassment if repeated, or if perpetrated in the context of a relationship of unequal power, such as a manager/employee or the staff/student relationship. Harassment may not always be intentional. This paper focuses on two prevalent forms of harassment:

• • Sexual harassment may be perpetrated under the guise of sexually provocative remarks or jokes, ridicule, lewd and/or offensive comments about appearance or dress, the promulgation of sexually explicit material, unwelcome and uninvited sexual advances or physical contact, demands for sexual favours or, in the worst cases, assault. The European Union defines sexual harassment as “unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of men and women at work”.^[2] In Wadman v Carpenter Farrer Partnership,^[3] W complained of sexual harassment after being subject to personal insults and leering and rude remarks by male work colleagues. The Employment Appeal Tribunal recommended that employment tribunals should refer for guidance to the European Commission Code of Practice for the above definition of sexual harassment and the procedure employers should adopt to discharge liability in such cases.

• • Racial harassment is typically (although not exclusively) directed at members of an ethnic minority. It may include gratuitous references to a victim’s race, religion, colour or nationality. It may include jokes at the expense of the foregoing. It can also include offensive remarks relating to the person’s culture, dress, appearance or customs which conspire to ridicule or undermine an individual or foster hatred and/or inspire prejudice towards individuals or particular ethnic groups. The British library defines racial harassment as any hostile or offensive act or expression by a person of one racial origin against a person of another, or incitement to commit such an act.^[4]

Sexual Harassment

The Sex Discrimination Act 1975 does not contain any express provision regarding harassment. However, sexual harassment is one form of direct discrimination. The term intimates that repetitive behaviour is necessary, but this is not always necessary. A single incident can in certain situations qualify as sexual harassment.^[5] In Bracebridge Engineering Ltd v Darby^[6] Darby had worked for 13 years for Bracebridge Engineering. One evening as she was cleaning her hands, the chargehand and works manager grabbed her, took her into an office, and indecently assaulted her. Mrs Darby complained to the general manager but the employer took no action when the harassers denied the incident. Mrs Darby thereafter resigned, claiming constructive dismissal. It was held by the Employment Appeal Tribunal that a single serious incident of sexual harassment could amount to discrimination. Mrs Darby was deemed entitled to resign when her employers failed to investigate her complaint properly. It should also be noted that whereas, women are the typical victims of sexual harassment, men may also be the victims of sexual harassment as Tribunal decisions have confirmed. For example, in Gates v Security Express Guards^[7] harassment of a male security officer by a male supervisor amounted to sex discrimination. By the same token harassment has been found in same sex cases involving women. In Johnson v Gateway Food Markets Ltd^[8] the harassment of a female general assistant by a female supervisor was held to qualify as sex discrimination.

In order to succeed in a claim founded on sexual harassment under the Sex Discrimination Act 1975, you must show that the behaviour complained of is less favourable treatment on the grounds of sex and that you have suffered a detriment as a result.

In Strathclyde Regional Council v Porcelli^[9] P was a school laboratory technician who was subject to a deliberate and vindictive campaign, partly of a sexual nature, by two male colleagues. The Scottish Court of Session held that even if only some of the harassment complained of was sexual, the pattern of harassment qualified as less favourable treatment on the ground of sex. The key issue was the treatment itself, not the motive for it.

In the more recent case of Reed & Bull Information Systems v Stedman^[10] Ms Stedman resigned her secretarial post to the Marketing Manager due to his repeated sexually provocative comments and lewd and suggestive behaviour towards her. He had persisted in this behaviour even after she informed him that she did not welcome his advances and found his behaviour offensive. Ms Stedman made no formal complaint about his behaviour, but the company became aware of the issue as a consequence of her complaints to other work colleagues and later of her deteriorating health but it took no action.

The Employment Appeal Tribunal found, significantly, that it was for the individual concerned to decide what behaviour they found offensive and the fact that another person might not come to the same conclusion would not undermine a claim. It was unnecessary for a victim to make a public complaint to demonstrate her disapproval. Provided that an objective test could be satisfied, namely that a reasonable person would understand, whether by the victim’s words or conduct, that she had rejected the behaviour in question, then any continuation of the unwelcome behaviour would be treated as harassment.

Any particular susceptibilities of the victim must be taken into consideration in determining the question as to whether harassment has occurred. In A v 1)X 2)Y 3)Z^[11]

A was a cleaner subjected to an inappropriate and intimate body search by her supervisor, who looked down her trousers at her underwear and her legs. A submitted to the search but subsequently complained of sexual harassment and brought a claim. The Employment Tribunal found that A had suffered sexual abuse in childhood and held that this was a relevant consideration in assessing both A’s response to her supervisor’s treatment of her and the extent of injury suffered. This was another single incident case, but it was deemed serious enough to qualify as sexual harassment in the circumstances.

In Driskell v Peninsula Business Services & others^[12] an employee claimed that her departmental manager (who had a history of making sexually explicit comments), advised her that she should wear a see-through blouse and a short skirt at an interview he was due to give her for promotion to a more senior post. She complained to the company but no action was taken. The complainant thereafter refused to work under the manager in question and she was dismissed as a consequence. The Employment Appeal Tribunal found that where a series of alleged incidents had occurred, a tribunal should consider the affect of each incident collectively and make a judgement on all the relevant facts. When determining whether sexual banter amounts to sexual harassment qualifying as discrimination, it was ruled that the sex of the parties involved should also be deemed relevant given that sexual comments by a male manager may be more intimidating when directed towards a female than towards a male.

Remedies for sexual harassment can include all those pecuniary awards typically made available on a finding of constructive dismissal.^[13] They can also include damages for injury to feelings and in serious cases damages for psychiatric injury. Criminal liability may also be incurred by the protagonist in serious cases.^[14] In less serious cases such as Moulds v Key Country Foods^[15] the Employment Tribunal ordered the employer to display an apology to the claimant on the staff notice board. In Marshall v Post Office^[16] the Employment Tribunal recommended a similar apology and also the transfer of both the perpetrators of the harassment and those who failed to investigate the situation properly. The creation of a review panel to monitor the workplace and make recommendations as to workplace equal opportunities policies and procedures was also recommended by the Tribunal.

Racial Harassment

Harassment on racial grounds is regarded as direct discrimination, under the Race Relations Act 1976, given that it constitutes a detriment in employment or in the way that a service is provided.

It should be noted that the Race Regulations (2003)^[17] provide that harassment on grounds of race or ethnic or national origin is prohibited as a distinct unlawful act. An offence is constituted where one person subjects another person to unwanted conduct on grounds of race or ethnic or national origin that has the purpose or effect of: violating the victim’s dignity; or creating an degrading, intimidating, hostile, offensive or otherwise humiliating environment for the victim.

That said, note that racial harassment continues to be treated as possible direct discrimination under the Race Relations Act 1976.

In Sidhu v Aerospace Composite Technology Ltd^[18] the applicant was a Sikh employed by the respondents. During a family outing organised by his employer the applicant and his family were the victims of a racial attack by fellow (Caucasian) employees. During the harassment the applicant picked up a chair and swung it about, although he did not hit anyone with the chair.

The incident was investigated by the respondents who decided that the applicant and the white employee who had initiated the racial harassment were both guilty of violence against a fellow employee and the use of abusive language. As a consequence the respondent concluded that both employees should be summarily dismissed.

The applicant took his case to the Employment Tribunal, which upheld a complaint of unfair dismissal but dismissed the complaint of race discrimination, as the harassment had taken place outside the scope of his employment. However, on appeal the Employment Appeal Tribunal found that the applicant had indeed been the victim of race discrimination. The EAT held that the Employment Tribunal erred in deciding that the incident had not occurred in the course of the applicant’s employment. They further held that the employer’s failure to take account of the racial context to the applicant’s own violent display was itself racial discrimination. The conduct of the employee was deemed to be ‘race specific’ and as a result it was not necessary to consider whether or not someone from a different racial group would have been treated differently.

In Jones v Tower Boot Co Ltd ^[19] a young employee of mixed ethnic origin was called a “chimp” and “monkey” and had a sign stuck to his back which read “Chipmunks are go”. Two employees whipped him on the legs and threw metal bolts at his head. The victim’s arm was burnt by a hot screwdriver and other violent harassment occurred. The Court controversially held that this extreme behaviour could not be said to be within the course of employment so as to render the employer liable but it should be noted that the 2003 Race Regulations would now apply to this unfortunate situation.^[20]

Remedies in the field of racial discrimination are adduced on a similar basis to that in the context of sexual discrimination. In Doshoki v Draeger Ltd^[21] the Employment Tribunal upheld a claim of racial harassment in the form of racial taunts. Compensation for injury to feelings of £750 was ordered and this represented the lower end of the compensation scale. However the applicant appealed to the Employment Appeal Tribunal, asserting that this figure was so low as to amount to an error of law. The EAT allowed the appeal and substituted an award of £4,000 for injury to feelings.

Concluding Comments

It is submitted that a contextual and purposive approach is taken to the determination of harassment in both sexual and racial cases, which in practice tends to favour the alleged victim who benefits from a broad interpretation of the relevant gateway rules and conditions.

It should be noted that the Criminal Justice & Public Order Act (1994), Protection from Harassment Act (1997), Malicious Communications Act (1998) and aforementioned Race Regulations (2003) now add to the general law of the land on harassment and offer extensive supplementation to the Sex Discrimination Act 1975 and the Race Relations Act 1976 which are the subjects of this work. It is argued that, together, these provisions constitute an effective and comprehensive mechanism to provide remedies and punishment where such harassment takes place.

THE END

WORD COUNT: 2173 (excluding footnotes)

BIBLIOGRAPHY

European Commission Code of Practice on measures to combat sexual harassment, Official Journal, L.49, 24 Feb. 1997

Pitt G., Employment Law (2003) Sweet and Maxwell

Sargeant M.(ed.), Discrimination Law, (2004) Pearson Education.

Middlemiss S., Civil Remedies for Victims of Sexual Harassment: Delictual Actions, Juridical Review, Part 4, July 1997 pp 241-249

Middlemiss S., Criminal Liability for Sexual Harassment, 1996 Scottish Law Gazette, Vol. 64, No. 2

Fredman S., Discrimination Law, (2001) Clarendon Law Series

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Footnotes

^[1] See for comment and review: Fredman S., Discrimination Law, (2001) Clarendon Law Series.

^[2] European Commission Code of Practice on measures to combat sexual harassment, Official Journal, L.49, 24 Feb. 1997.

^[3] (1993) IRLR 374, EAT.

^[4] http://www.bl.uk/about/policies/divappen1.html.

^[5] See for comment: Sargeant M.(ed.), Discrimination Law, (2004) Pearson Education.

^[6] (1989) IRLR 3, Employment Appeal Tribunal.

^[7] (1993) IT.

^[8] (1990) IT.

^[9] (1986) IRLR 134, Court of Session.

^[10] (1999) IRLR 299, EAT.

^[11] (2000) Case No: 2401228, ET.

^[12] (2000), IRLR 151, EAT.

^[13] See for analysis: Middlemiss S., Civil Remedies for Victims of Sexual Harassment: Delictual Actions, Juridical Review, Part 4, July 1997 pp 241-249.

^[14] Middlemiss S., Criminal Liability for Sexual Harassment, 1996 Scottish Law Gazette, Vol. 64, No. 2.

^[15] (1997) 1803277 ET.

^[16] (1997) 2602447 ET.

^[17] See: http://www.cre.gov.uk/legal/rra_regs.html.

^[18] [2000] IRLR 603.

^[19] [1997] IRLR 168.

^[20] See: Pitt G., Employment Law (2003) Sweet and Maxwell.

^[21] [2002] IRLR 340, EAT.