A quantitative and qualitative analysis of sexual harassment claims 1995–2005

• Author: Graeme Lockwood,Patrice Rosenthal,Alexandra Budjanovcanin
• DOI: http://doi.org/10.1111/j.1468-2338.2010.00599.x
• Published date: 01 January 2011
• Date: 01 January 2011

A quantitative and qualitative analysis of

sexual harassment claims 1995–2005

Graeme Lockwood, Patrice Rosenthal and

Alexandra Budjanovcanin

ABSTRACTirj_59986..103

This article explores the organisational and legal context in which parties involved in

claims relating to sexual harassment operate, and presents an analysis of the popu-

lation of sexual harassment cases heard by Employment Tribunals between 1995 and

2005.

1 INTRODUCTION

A wide variety of literature has identified the detrimental impact of sexual harassment

in the workplace (Crull, 1982; Crull and Cohen, 1984; Gutek and Koss, 1993; Loy

and Stewart, 1984). It has been found to cause a wide range of psychological and

work-related harms, including diminished work performance, lower job satisfaction,

absenteeism, career interruptions, job loss, depression and health problems (Gutek,

1985). This article reports on an analysis of Employment Tribunal judgments in cases

of sexual harassment over a 10-year period.

2 THE LEGAL CONTEXT

Since 1986, UK tribunals and courts have interpreted section 6(2)(b) of the Sex

Discrimination Act 1975 (SDA) in a manner that recognises that sexual harassment

may constitute a ‘detriment’ on grounds of sex, against which protection is available

under the SDA [Porcelli v Strathclyde Regional Council (1986) IRLR 134]. Section

41(1) SDA states that an act done by an employee in the course of employment shall

be treated as done by his employer as well as by him, whether or not it was done with

the employer’s knowledge or approval. For an employer to avoid liability for acts of

sexual harassment by its employees, section 41(3), SDA provides that it is necessary

for the employer to prove that it took such steps as were reasonably practicable

to prevent the employee from committing, in the course of his employment, an act of

❒Graeme Lockwood is Senior Lecturer in Business Law and Employment Relations, Department of

Management, King’s College London, University of London, Patrice Rosenthal is formerly Senior Lec-

turer, Department of Management, King’s College London and Alexandra Budjanovcanin is Research

Associate, Department of Management, King’s College London. Correspondence should be addressed to

Dr Graeme Lockwood, Senior Lecturer in Business Law, Department of Management, King’s College

London, Franklin-Wilkins Building, 150 Stamford Street, London SE1 9NH; email: graeme.lockwood@

kcl.ac.uk

Industrial Relations Journal 42:1, 86–103

ISSN 0019-8692

© 2011 The Author(s)

Industrial Relations Journal © 2011 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and

350 Main Street, Malden, MA 02148, USA.

harassment. The defence will only succeed where the employer has laid the

groundwork in advance by adopting, implementing and disseminating a sound

anti-harassment policy.

An employer may respond to an allegation of sexual harassment by: relying on

the section 41(3) statutory defence, denying the claims by the respondent, or by

arguing that the actions complained of do not constitute sexual harassment.

Denial that the alleged harassment took place appears to be a favoured tactic of

employers.

A person who considers that they have been discriminated against may make a

claim to an Employment Tribunal. Such a claim must be made within three months of

the act complained of. In October 2001, the burden of proof in sex discrimination

cases under the SDA 1975 was changed by the Sex Discrimination (Indirect Discrimi-

nation & Burden of Proof) Regulations 2001. These Regulations inserted section

63A into the SDA. This formally reversed the burden of proof in employment and

vocational training cases under the SDA. Under section 63A SDA, it is now the case

that where the applicant proves facts from which the tribunal could infer that unlaw-

ful discrimination has occurred, the burden moves to the employer to prove that he

did not commit that act (Honeyball and Bowers, 2002: 273).

An appeal from an Employment Tribunal on a question of law or a mixed question

of law and fact can be made to the Employment Appeal Tribunal (EAT).

Spurred by EU directives on sexual harassment, the UK government introduced

the Employment Equality (Sex Discrimination) Regulations 2005. The Regulations

explicitly prohibit harassment and sexual harassment in employment and vocational

training. For the purposes of the Regulations, harassment was defined as being

either:

•unwanted conduct on the ground of the applicant’s sex; or

•unwanted conduct of a sexual nature.

Furthermore, the conduct must have the purpose or effect of violating the appli-

cant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive

environment for the individual or individuals involved. The new Regulations were

welcomed as explicitly recognising and defining harassment as a specific wrong, rather

than subsuming it within sex discrimination law in general (Clarke, 2006). However,

these Regulations were subject to a legal challenge in the case of Equal Opportunities

Commission v Secretary of State for Trade and Industry (2007, IRLR, 4). The Equal

Opportunities Commission argued that the words ‘on the ground of’ involve the

question of causation, requiring the tribunal to investigate the reason why the behav-

iour occurred, and also that the requirement for a comparator in the Regulations

was contrary to the wording of the EU Directive (Taylor and Emir, 2009: 144).

The Regulations have since been amended by the Sex Discrimination Act 1975

(Amendment) Regulations 2008, which came into force in April 2008. They remove

the requirement for a comparator, and remove the requirement that the harassment

be ‘on the ground of sex’, substituting instead that the harasser ‘engages in unwanted

conduct that is related to her sex or that of another person’ (Taylor and Emir, 2009:

144). The cases analysed in this study preceded the enactment of the Employment

Equality (Sex Discrimination) Regulations 2005. A useful area of future study would

be to see how the changes in the law since 2005 have improved matters and made a

difference (if any) to the issues raised in this article.

87Analysis of sexual harassment claims 1995–2005

© 2011 The Author(s)

Industrial Relations Journal © 2011 Blackwell Publishing Ltd