Editorial

DOI10.1177/135822919800300201
Published date01 September 1998
Date01 September 1998
International Journal of Discrimination and the Law, 1998, Vol
. 3, pp
. 89-90
1358-2291/98 $10
© 1998
A B Academic Publishers
. Printed in Great Britain
EDITORIAL
In this issue Pauline Roberts and Lucy Vickers review the current
debate in England and Wales on sexual and racial harassment at
work and assess the impact of recent Employment Appeal Tribunal
and Court of Appeal decisions which extend the scope of the Sex
Discrimination Act 1975 and the Race Relations Act 1976 and which
significantly increase the vicarious liability of employers for the acts
of their employees
. A `purposive' approach to the legislation has
been adopted
. If the aim of the Acts is to prevent discrimination,
then liability should be imposed on the employer unless the employer
has used his best endeavours to prevent it and the worst the harass-
ment, the more likely it is that the employer will be liable
.
A stronger approach towards harassment is being taken by the
courts, to expand both direct and vicarious liability, thereby increas-
ing the pressure on employers to take steps to prevent harassment
.
While the approach of the Employment Appeal Tribunal and the
Court of Appeal is interpreting these Acts has been robust, some
forms of workplace bullying remain outside the scope of the Acts
and the authors therefore consider possible alternatives available to
complainants
.
Joanne Conaghan considers the continuing problems which face
the courts in reconciling the needs of employers and pregnant
workers and focuses on the problems of applying the equality prin-
ciple to the condition of pregnancy. She examines the decision of the
European Court of Justice in
Gillespie
v
.
Northern
Ireland Health
and Social Services Board [1996]
IRLR 214 and its impact
. If preg-
nancy is conceptualised as a dimension of sexual equality, this can
lead to confusing and conflicting results when applied by the courts
.
She questions whether the ECJ's ruling in
Gillespie
has resolved the
difficulties associated with the application of the principle of equality
to discriminatory treatment based on pregnancy and whether it pro-
vides a coherent framework in which these issues can be resolved
.
Despite the changes introduced by the Pregnant Workers Direct-
ive 1992, the detrimental treatment of pregnant workers still persists
and problems have arisen within the UK as the courts try to recon-
cile the jurisprudence of the European Court with employers' claims
that their actions are based on legitimate business needs
. She stresses
the need to ascertain the value of different approaches including
health and safety and workers' rights approaches, rather than
focussing simply on an equality analysis, for if employers are more
generous to sick than to pregnant workers, then it may be a better

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