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Sandra Gidley: I thank the Minister for that comprehensive reply. I said from the outset that the new clause was probably an imperfect way of solving the wider problem, but I felt it important to draw attention to the problems faced by some vulnerable residents of our care homes. The fact that we have waited four years for a suitable case to arise highlights a problem in the system. While I welcome the guidance given to local councils, it might be useful were users and their relatives also provided with some simple guidance on what they could expect as basic human rights and what sort of things could be challenged. I am sure that there are organisations that would willingly help with that challenge, because there is a lot of concern about the fact that much behaviour goes unnoticed and is not acted on. I look forward to seeing what the review comes up with in due course. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
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New clause 11
Harassment by third parties
'(1) The Sex Discrimation Act 1975 (c.65) is amended as follows.
(2) In section 4A of the Sex Discrimination Act 1975 (harassment, including sexual harassment) subsection 4A (1) (b) insert—
''(c) he fails to take reasonable steps to prevent the occurrence or continuation of any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect—
(i) of violating her dignity, or
(ii) of creating an intimidating, hostile degrading, humiliating or offensive environment for her, or''.
(3) In section 4A (1) (c) for ''subsection (a) or (b)'' substitute ''subsections (a), (b) and (c)''.
(4) In section 4A (1) (c) for ''subsection 1(a) or (b)'' substitute ''subsections 1(a), (b) and (c)''.'. —[Sandra Gidley.]
Brought up, and read the First time.
Sandra Gidley: I beg to move, That the clause be read a Second time.
The Chairman: With this it will be convenient to discuss new clause 12—Harassment in the provision of services—
'(1) The Sex Discrimation Act 1975 (c.65) is amended as follows.
(2) In section 29 of the Sex Discrimination Act 1975 (discrimination in provision of goods, facilities or services) after subsection (1) insert—
''(1A) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to subject to harassment a woman who seeks to obtain or use those goods, facilities or services.''.
(1) In subsection 29 (2) for ''subsection (1)'' substitute ''subsections 1 and 1A''.
(3) In section 29 (4) for ''subsection (1)'' substitute ''subsections 1 and 1A''.'.
Sandra Gidley: New clause 11 deals with harassment of employees by third parties and would ensure that the equal treatment directive was properly implemented in terms of harassment. New clause 12 would extend the protection of service users from harassment to the provision of services in both the public and private sectors.
The Government have amended the Sex Discrimination Act to make it unlawful for a public authority to undertake any action that constitutes harassment when it exercises a public function. They have also placed a positive duty on public authorities to have due regard to the need to eliminate harassment when carrying out their functions. The Government's amendments rely on the definition of harassment recently inserted into the Sex Discrimination Act by the Employment Equality (Sex Discrimination) Regulations 2005. Those regulations implemented the equal treatment directive, which came into force on 1 October.
Those are welcome moves, but the Equal Opportunities Commission has raised concerns that the interpretation of harassment adopted in the regulations is worryingly narrow. In particular, liability for harassment by third parties is covered only by the current statutory definition of harassment in very limited circumstances such as in employment and vocational training, if the employer or training
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provider fails to take preventive or remedial action because of the sex of the complainant. New clause 11 would address that sort of problem.
An example of how such a problem might arise is a situation in which a woman working in a local authority facility was harassed by a customer. Employers have a duty to prevent all such incidents, and one would hope that a good employer would provide a safe working environment for all staff. However, under the current provisions, that woman would have no grounds on which she could challenge her employer, unless she could prove that the employer would have treated a similar complaint from a male member of staff more favourably or could show that the employer might have taken preventive action to protect male employees in similar circumstances. In a situation in which the employer had failed to protect all members of staff from harassment, it is difficult to see how a woman could take action under the Bill as currently drafted. Moreover, there are some situations in which women might be more liable or vulnerable than men to harassment.
As the legislation is currently drafted, a woman is required to have a hypothetical male comparator before she can pursue any sort of case. However, other countries have interpreted the directive differently. One example is the Republic of Ireland, where there is no requirement for a comparator of the opposite sex in order to bring a claim, but solely a need to show that there was unwarranted conduct related to any of the discriminatory grounds.
New clause 12 would extend the harassment protection to users of goods, facilities or services in the public and private sectors under section 29 of the Sex Discrimination Act. That section currently outlaws sex discrimination in the provision of goods, facilities and services, but does not outlaw harassment. In due course, the Government will have explicitly to outlaw harassment in services provided by the public and private sectors, to comply with the goods and services directive, which will be implemented eight months after the gender equality duty enforcement date of April 2007. In April 2007, public bodies will have to apply the definition of harassment and, eight months later, they will have to include services covered by section 29 of the Sex Discrimination Act. It was seen that, as in all things, it would be much better to aim for some simplicity and the new clauses would achieve that result.
Meg Munn: I want to say at the outset that members of the Committee should be in no doubt that the Government believe that harassment is abhorrent and should not be tolerated. However, I shall explain why we are not minded to accept the new clauses. As the hon. Lady said, the Employment Equality (Sex Discrimination) Regulations 2005 came into effect on 1 October 2005. They inserted into the Sex Discrimination Act 1975 the definition of harassment, including sexual harassment. Until then, case law had established that certain forms of unwanted behaviour carried out because of a person's sex constituted harassment and amounted to
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sex discrimination for the purposes of the Sex Discrimination Act. That definition applies to employment and vocational training only.
The definition of ''harassment'' under the Sex Discrimination Act mirrors the definition under the Bill. It outlaws discrimination in employment on the grounds of race, sexual orientation, religion and belief. The same approach is being taken in forthcoming legislation on age discrimination in employment. Under discrimination law, harassment is when a person subjects another to unwanted conduct, which has the purpose or effect of violating the other person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
Under the Sex Discrimination Act, harassment is unwanted conduct on the grounds of the victim's sex. The Act also outlaws sexual harassment, which is unwanted verbal, non-verbal or physical conduct of a sexual nature, a concept that applies in sex discrimination only. Section 41 of the Sex Discrimination Act makes an employer liable for an act of discrimination or harassment carried out by another, as long as that person is employed by him and carries out the act in the course of his or her employment.
New clause 11 would extend that precarious liability further to cover sexual harassment by third parties. It would mean, for example, that if a client subjected an employee to sexual harassment and the person's employer does not take reasonable steps to prevent the third party from doing that, the employer would be liable for the act of sexual harassment. In practice, an employer would be liable for acts of sexual harassment carried out by others, over whom he has no direct control. That would be a significant extension of the law and its desirability would need to be considered carefully.
For example, is it justifiable for an employer to be held liable when the harassers themselves face no sanction for their unacceptable behaviour? If that were considered to be a fair way in which to approach the matter, how would the employer know whether he had taken reasonable steps to prevent the harassment from occurring and, thus, had stayed within the law? We need to consider such matters carefully before deciding whether there is a need to extend the scope of the harassment provisions in the way proposed by the new clause.
We want to ensure that greater consistency is achieved by the protection afforded to different groups, whenever that is appropriate. The new clause would not only put sex discrimination legislation significantly out of step with legislation covering the other equality strands, but would lead to inconsistency within the Sex Discrimination Act itself. That raises the question why consideration of that extension of the law should apply only to sexual harassment. The principle of third-party harassment would also apply to harassment on the grounds of sex and harassment in the other equality strands. For both reasons, we believe that the discrimination law review is the appropriate vehicle by which to give full and proper consideration to such issues. We would need, in
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particular, to consider whether the approach suggested in the new clause assigns responsibility for third party harassment in an appropriate way.
Section 29 of the Sex Discrimination Act makes it unlawful to discriminate on grounds of sex in the provision of goods, facilities or services. New clause 12 would extend that provision to make harassment in the provision of goods, facilities or services unlawful, too. The Government support the principle behind the new clause. Indeed, we are already committed to bringing in protection in that regard, but we consider that now is not the right time to do so. As I have made clear, we are considering harassment, including sexual harassment, in the discrimination law review. I am sure that members of the Committee will be aware by now that a key objective of the review is to remove unjustified inconsistencies in the protections afforded to different groups of people. That is the light in which we shall consider harassment.
Through the review we are consulting with a range of stakeholders, and it is vital that we consider their perspectives. It will help us to ensure that goods and service providers are aware of and prepared for any new responsibilities that they may have. On that basis, will the hon. Lady withdraw the motion?
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