Sexual Harassment – old law

Will soon be separate offence according to abogados de accidentes de trabajo

 Generally ongoing rather than a one off and time runs from the last act

 Currently not a separate offence so must use direct discrimination and NOT

indirect D

 Definition : ‘unwanted conduct which violates dignity’

 Unlawful act is subjection to a detriment

 Need less favourable treatment – although sex or specific comments don’t. If

sex/gender specific then you don’t need a comparator – it is sex discrimination

Reed v Stedman. It is victim orientated, ie it is up to the victim to decide if

they are offended or not. Ie, if a woman is called a bitch or a cow it doesn’t

need to be compared to men’s put downs

 It is very subjective and looked at from the victim’s point of view

 IMPORTANT FOR EXAM – Watch for more than one act of discrim – eg

original act complained of and failure to investigate/prevent, if employer has

failed to investigate/prevent then it will be less favourable treatment which

will lead to discrim.

 If act by another employee – check vicarious liability, liability must be ‘in the

course of employment’. It does extend beyond the workplace ie at the office

xmas bash – can’t be too wide though. MUST put staff on notice before do’s

to defend harassment claims.

 In above scenario, V can bring in the e/ee as well as the e/er in case the e/er

has the defence and then V can pursue the e/ee directly

 If boss says stop being soppy, the victim can have a 2 nd D claim for

management not taking the complaint seriously and V could get more for

injured feelings

4

 Defence – employer took all reasonable steps to prevent discrim, ie

investigated complaints, tried to prevent act, had policy in place, had training

policy etc.

New Harassment laws –Reg 4 (Employment Framework Directive 2000/78)

 Relatively new at the moment so not much case law

 This is the test to use:

Defined offence for first time for race, religion and belief, sexual

harassment.

 “Unwanted conduct which has a purpose or effect of:

o violating dignity or

o creating an intimidating, hostile, degrading, humiliating or offensive

environment.”

 Interpretation: appears to be subjective criteria

o Reg 5(2): acts will be unlawful if ‘having regard to all circumstances,

including in particular the perception of the victim, it should

reasonably be considered as having that effect.’