Johanna Westeson - The ICHRP

definitions as those described above. Here, the prohibition applies to persons providing
goods and services available to the public and transactions carried out in the public
context.
As of December 2009, the European Court of Justice has not provided guidance for the
interpretation of the notion of sexual harassment in the meaning of Directives 2006/54/EC
and 2004/113/EC.
4. Domestic legislation and case law
i. Comprehensive and inclusive laws prohibiting sexual harassment
The United Kingdom implemented the provisions of Directive 2002/73/EC relating to
sexual harassment in the Employment Equality (Sex Discrimination) Regulations 2005, 116
which amended the existing Sex Discrimination Act (1975). A person now subjects a
woman to harassment, including sexual harassment, if
(a) on the ground of her sex, he engages in unwanted conduct 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,
(b) he engages in 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
(c) on the ground of her rejection of or submission to unwanted conduct of a kind mentioned
in paragraph (a) or (b), he treats her less favourably than he would treat her had she not
rejected, or submitted to, the conduct. 117
According to Section 4A (5) and (6), harassment and sexual harassment of women as
defined above is to be read as applying equally to the harassment of men. Importantly, it
also covers harassment based on a person’s gender identity, however only in cases where
the person intends to undergo, is undergoing, or has undergone gender reassignment
(Section 4A(3)). 118 The employer is liable for both direct harassment and for harassment
occurring among co-workers, under the employer’s obligation to take reasonable steps to
prevent harassment at the workplace (Section 41).
Further amendments to the Sex Discrimination Act (1975) were introduced in 2008 in
order to bring UK regulations in line with EU Directives. The SDA Amendment
Regulations SI 2008/656 came into effect on 6 April 2008. 119 The definition of gender
harassment is expanded to protect against harassment when “[a person] engages in
unwanted conduct that is related to [the victim’s] sex or that of another person” (Section
3). This change enables claims to be made by somebody who is not personally subjected to
the unwanted conduct, but the effect of which nonetheless violates his or her dignity or
creates an intimidating environment. Moreover, the 2008 amendment includes a specific
provision to make an employer liable for sexual harassment of employees by third parties.
The employer will become liable if he or she fails to take reasonably practicable (proactive
116 In force on October 1, 2005.
117 Section 4A (1) of the Employment Equality Regulations, amending the Sex Discrimination Act.
118 See for a discussion of this limitation above under Chapter 1A.
119 SDA Amendment Regulations SI 2008/656.
50