IBA Vancouver Tuesday 5 October 2010: Leisure Industries Section Joint session with the Discrimination Law Committee and the Employment and Industrial Relations Law Committee Sex, Wages and Videotapes: Employment and Privacy Issues in the Hospitality Industry CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

Sexual Harassment (including the problem of harassment by guests and third parties) Bettina Bender, Partner, CM Murray LLP CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

Introduction Changes in law since “Bernard Manning case”; 2008 Equal Opportunities Commission test case; Development of “3 strikes rule”; Does this protection go far enough? The Equality Act 2010 – extension to cover the protected characteristics CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

Development of law Employer could be liable for a third party’s discriminatory act towards employee, Burton and Rhule de Vere Hotels [1996]; Overruled by Pearce v Governing Body of Mayfield School [2003]; Equal Opportunities Commission challenged proper implementation of the Equal Treatment Directive; Creation of “3 strikes rule” where employer may be liable if harassment taken place on at least 2 previous occasions during employment. CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

What is harassment? Two different types of harassment –Sex harassment – unwanted conduct related to sex or sex of another person; has the purpose or effect of violating individual’s dignity; or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

–Of a sexual nature Unwanted verbal, non verbal or physical conduct of a sexual nature; Has the purpose or effect of violating individual’s dignity; Or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

When will an employer be liable for harassment by third parties? Section 6 (2B) of the Sex Discrimination Act included in April 2008 following the Equal Opportunities Commissions’ challenge; Allows for employers to be liable for third party harassment if: –Harassment takes place during course of employment; –Employer failed to take such steps as reasonably practicable to prevent third party harassing the employee; –Employer knew woman had been subject to harassment on at least 2 other occasions by a third party. CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

What can employers do to minimize risk of being liable for harassment by third parties and protect their staff? Take reasonable steps to prevent harassment occurring, including: –Adopting a zero tolerance approach to inappropriate language and behaviour in the workplace; –Ensuring workplace does not contain inappropriate materials; –Implementing strong anti harassment, dignity at work and equal opportunities policies which cover third parties; CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

–Training staff in content of policies and making them aware of ‘zero tolerance” approach; –Responding to complaints promptly and conducting a thorough investigation; –Documenting in writing any training given or action taken in response to alleged harassment. CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

Comparisons with other jurisdictions Third Party Harassment in the USA; Third Party Harassment in Canada; Does the UK offer enough protection? Is the three strikes rule too pro employer? CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

Conclusion Law has developed considerably in recent years; Employers can be liable in certain circumstances; Important to ensure workplaces free from harassment or inappropriate behaviour to foster positive work environment. CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

Speaker Details Bettina Bender, Partner CM Murray LLP 37 th Floor One Canada Square Canary Wharf London E14 5AA United Kingdom If you have any questions, please do not hesitate to contact: Phone: (0) Website: