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Jimmy Savile and Employment Law

In a blog entitled “Jimmy Savile and workplace culture today” (see here Mark Easton, the BBC’s News Home Editor, discusses changing attitudes towards sexual harassment at work, and reflects that the sort of conduct of which the late Jimmy Savile is now accused was far more widely tolerated in the 1970’s than today.

In the course of his article Mr Easton makes the following claim:

Although the Sex Discrimination Act of 1975 did provide some protection for women in the workplace, it was not until the Protection from Harassment Act 1997 that employers were obliged to take seriously the issue of female staff being bullied or sexually harassed in the office.

A brief survey of the IRLRs suggests that this is unlikely. There does not appear to be a single reported case of female employees complaining of work place sexual harassment under the 1997 Act.

The Protection from Harassment Act 1997 was passed to provide remedies for the victims of stalkers – not, as Easton says, “to criminalise stalking and bullying in the workplace”. Indeed it was only in 2006 that the House of Lords definitively held that employers could be held liable for a course of conduct by one of its employees which amounts to “harassment” in breach of the Act (Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34).

Recourse to the 1997 Act is not the obvious solution for victims of workplace sexual harassment for a variety of reasons, but they include the following:

–       The claim cannot be brought in the employment tribunal. It has to be brought in the civil courts, with its different costs regime.

–       For liability to arise there has to be a course of conduct. A single incident, however egregious, will not amount to harassment for the purposes of the Act.

–       Because a breach of the prohibition on harassment set out in section 1 of the Act is a criminal offence, the touchstone of liability is whether the conduct in question is of such gravity as to justify the sanctions of the criminal law (see Conn v Council of the City of Sunderland [2008] IRLR 324).

The Employment Equality (Sex Discrimination) Regulations of 2005 – also mentioned by Easton – are surely far more important than the 1997 Act in bringing about a change in attitude towards workplace sexual harassment. These Regulations, which by amendment brought the Sex Discrimination Act 1975 into line with Equal Treatment Directive, define harassment in the way now set out in s.26 of the Equality Act 2010. This definition was considered by Underhill J, in the context of racial harassment, in Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336. He expressly stated that the case law considering the concept of “harassment” under the 1997 Act is not relevant to this quite different statutory tort. Section 23(3) of the Equality Act 2010 also renders unlawful harassment by a third party “of a sexual nature”.

The 1997 Act is certainly not irrelevant in the employment context. For instance, a series of threatening solicitor’s letters can amount to harassment for the purposes of the Act: see Iqbal v Dean Manson Solicitors [2011] EWCA Civ 123 – a case which also confirms that a partnership can be a defendant to such a claim. Another interesting case is First Global Locums Ltd v Cosias [2005] IRLR 873 in which a disgruntled former employee was restrained by injunction from contacting or approaching his erstwhile colleagues, having pestered and threatened a number of them after his employment ended. That order was sought in conjunction with a more familiar application to enforce post termination covenants.

While Easton’s emphasis on the 1997 Act might be questionable, he is surely right that the workplace culture of today is unrecognisable from that of the 1970’s, and that key legislation has been instrumental in bringing about these changes. Although it is the employment litigator’s lot to come across many a spurious or contrived discrimination claim, the fact that (for instance) less than 20 years ago blatant discrimination towards the disabled was without sanction, and the concept of “reasonable adjustments” did not exist does indeed remind us  – to use Easton’s words – “how far we have come”. If Easton is right that Savile would not today have got away with the grotesque behaviour he is said to have carried out in the 1970s, that is an unequivocally good thing.

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