Last week the Financial Times reported that female hostesses were sexually harassed at a men-only charity fundraiser organised by the now closed Presidents Club. Described on stage by one of the hosts to be “the most un-PC event of the year”, hostess were allegedly groped and propositioned by some of the attendees. This raises important questions about employers’ liability for third-party harassment.
The Financial Times reported that hostesses were told to bring “black sexy shoes”, black underwear and to do their hair and make-up as if going to a “smart sexy place”. Short black dresses and belts were supplied on the day. Wine was offered before the hostesses entered the room.
In October 2013 specific provisions in the Equality Act 2010 which rendered employers liable in some circumstances for third-party harassment were repealed. However there remains scope to argue that an employer’s inaction in the face of third-party harassment can itself amount to an unlawful act. Under Section 26 of the Equality Act 2010 harassment can occur where conduct is related to a protected characteristic, such as sex. This gives an employee the opportunity to argue that an employer’s inaction in the face of third-party harassment is itself unwanted conduct related to a protected characteristic which violated their dignity or created an intimidating, hostile, degrading, humiliating or offensive environment.
The legislation and case law in this area is complex and the difficulty comes in applying it to specific situations like the Presidents Club scandal. For example, one of the first issues would be determining whether people engaged for one day qualify as protected employees, either of the agency which supplied them, the venue or the event organiser. The seriousness of sexual harassment in the workplace and complexity of the law in this area means it is important to take early legal advice from an Employment Solicitor.