R (Equal Opportunities Commission) v Secretary of State for Trade and Industry
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BURTON |
| Judgment Date | 12 March 2007 |
| Neutral Citation | [2007] EWHC 483 (Admin) |
| Docket Number | Case No: CO/10141/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 March 2007 |
[2007] EWHC 483 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Burton
Case No: CO/10141/2005
Miss Dinah Rose QC and Ms Karon Monaghan (instructed by the Equal Opportunities Commission ) for the Claimant
Mr David Pannick QC and Mr Gerard Clarke (instructed by the Treasury Solicitor ) for the Defendant
Hearing dates: 27 & 28 February 2007
The Equal Opportunities Commission ("EOC") is the body authorised by s53(1) of the Sex Discrimination Act 1975 ("the 1975 Act"):
"(a) to work towards the elimination of discrimination
(aa) to work towards the elimination of harassment that is contrary to … [the 1975] Act
(b) to promote equality of opportunity between men and women generally …
(c) to keep under review the working of [the 1975] Act and the Equal Pay Act 1970 and, when they are so required by the Secretary of State or otherwise think it necessary, draw up and submit to the Secretary of State proposals for amending it. "
The EOC contends that the Government has failed in certain respects to comply with its obligation as a Member State in the manner in which it implemented Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002, amending Council Directive 76/2007/EEC, ("the Directive") in the form of the Employment Equality [Sex Discrimination] Regulations 2005 ("the Regulations") which, when they came into force on 1 October 2005, introduced amendments to the 1975 Act. There was a great deal of consultation and communication between the Government and the EOC prior to the legislation being enacted, but the EOC was not able to convince the Government as to some aspects, nor to persuade it to reconsider once the legislation was enacted, in response to a detailed protocol letter before action dated 15 November 2005 sent to the Secretary of State for Trade and Industry. Responsibility for discrimination legislation now vests in the Secretary of State for Communities and Local Government, but proceedings are brought by the EOC as Claimant, for whom Miss Dinah Rose QC has appeared with Ms Karon Monaghan, against the Secretary of State for Trade and Industry, as progenitor of the legislation, represented by Mr David Pannick QC and Mr Gerard Clarke.
There have been six such aspects of the legislation which the Claimant has pursued in these proceedings, although, as will be seen, the first two, and to an extent the fourth, have blended together in argument. They can be summarised as follows:
i) " On the ground of "
This formed the major thrust of Miss Rose QC's able and convincing submissions, so convincing that in the event Mr Pannick QC buckled under them, as will be seen. There is, as a result of paragraph 5 of the Regulations, a new s4A of the 1975 Act dealing with harassment. The new s4A(1) reads as follows:
"For the purposes of this Act, a person subjects a woman to 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. "
Miss Rose's submission is that, as to the first form of harassment, characterised by s4A(1)(a), the use of the words "on the ground of her sex " must necessarily, and impermissibly, involve the issue of causation, or – as I put it in argument – of ratiocination, by reference to the inevitable investigation of 'by reason of ' (see, in the context of the law of discrimination, by reference to the identical words in s1 of the 1975 Act, Nagarajan v London Regional Transport [1999] ICR 877 particularly at 886 E-F) and 'the reason why issue " ( Shamoon v Chief Constable of the RUC [2003] ICR 337 at para 8).
Such importation of causation into the concept of harassment is, she submits, inapt. Harassment as defined by Article 1.2.2 of the Directive does not require or allow for it:
"(2) For the purposes of this Directive, the following definitions shall apply …
- harassment: where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment,"
It is this association with sex, not causation by it, which defines harassment.
ii) " On the ground of her sex "
The further point is made by Miss Rose (which, as stated above, inevitably blends with the first point) that, as formulated by the subsection, the unwanted conduct has to be by reason of, or on the ground of the complainant's sex, whereas the definition of harassment at Article 1.2.2, as set out above, is by reference to "unwanted conduct related to the sex of a person "; i.e. a complainant may be harassed by conduct which is directed at a man or another woman.
iii) The objective test
Miss Rose refers to s4A(2), which qualifies the newly formulated complaint of harassment in s4A as follows:
"(2) Conduct shall be regarded as having the effect mentioned in sub-paragraph (i) or (ii) of subsection (1)(a) or (b) only if, having regard to al the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect. "
She complains that this imports what she submits to be an inappropriate objective test into the definition of harassment.
iv) Employers' Liability for Third Parties
The House of Lords in Pearce v Governing Body of Mayfield Secondary School [2003] ICR 937 made it entirely clear, in respect of sex discrimination under s1 of the 1975 Act, overruling Burton v De Vere Hotels Ltd [1997] ICR 1, that an employer is not vicariously liable for discriminatory acts or omissions of a party such as a customer, client, contractor or visitor. It also made clear that it was necessary to show that the employer himself had discriminated, and that consequently failure to take adequate steps was insufficient (see e.g. paragraphs 29, 101 of the judgment).
She submitted that the Directive was aimed at eliminating discrimination in the workplace, and that the legislation failed to implement the Directive in not introducing or enabling such liability.
v) The comparator in discrimination on grounds of pregnancy and maternity leave
For the purpose of this summary I shall refer only to pregnancy, although the same argument applies mutatis mutandis in respect of maternity leave. Miss Rose submits that it is impermissible to have introduced in legislation the requirement for a comparator, albeit not a male comparator but a non-pregnant female comparator, for the purpose of establishing discrimination on grounds of pregnancy. She relies upon the judgments in Webb v EMO Air Cargo (UK) Ltd by the European Court [1994] ICR 770 (" Webb No 1"), especially at paragraphs 24 to 28 of the judgment of the Court, and by the House of Lords [1995] ICR 1021 (" Webb No 2"), especially at 1027 A-C, and of the European Court in Gillespie v Northern Health Board [1996] ICR 498, particularly at paragraphs 16 to 17 of the judgment of the Court. The judgment in Gillespie addressed the issue of pregnant women at paragraph 17, as being "in a special position which requires them to be afforded special protection, but which is not comparable either with that of a man or that of a woman actually at work ". S3A(1) of the 1975 Act, introduced by paragraph 4 of the Regulations, reads as follows:
"In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if –
(a) at a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably than he would treat her had she not become pregnant; or
(b) on the ground that the woman is exercising or seeking to exercise or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably than he would treat her if she were neither exercising nor seeking to exercise and had neither exercised nor sought to exercise, such a right. "
Miss Rose further submitted that, unless it was intended that there would still be a remedy for a woman complaining of discrimination by reference to pregnancy or maternity leave under s1 of the 1975 Act, as previously, in parallel with the new right under s3A, then the new section would also offend against the principle of regression, articulated in the Directive—as is common—in Article 1.8e.2:
"The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by member states in the fields covered by this Directive. "
Mr Pannick, in his submissions in response, confirmed that it was not intended that s1 should remain available in parallel, but that s3A should be the only route by which a claim for discrimination by reference to pregnancy/maternity leave can now be made.
vi) The exceptions during maternity leave
S6A, introduced by paragraph 8 of the...
To continue reading
Request your trial
-
English v Thomas Sanderson Blinds Ltd
...Honour Judge Peter Clark, drew counsel's attention to the decision of Burton J in the Administrative Court in EOC v Secretary of State [2007] ICR 1234. In that case the EOC contended amongst other things that s.4A(1)(a) of the Sex Discrimination Act 1975 did not fulfil its intended purpose......
-
(1) Secretary of State for Work and Pensions (2) ADR (3) CS CIS 204 2013
...under OML under the impact of discrimination legislation: see Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] EWHC 483 at [50]–[58], a case which led to the Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations (SI 2......
- HM Prison Service v Johnson
-
Unite the Union v Sally Nailard
...several others – to conform to the requirements of the Directive. It brought judicial review proceedings. In Equal Opportunities Commission v Secretary of State for Trade & Industry [2007] EWHC 483 (Admin), [2007] ICR 1234, (“the EOC case”) Burton J upheld the Commission's challenge. We ar......
-
The Liability of Employers for the Harassment of Employees by Non-Employees
...of a sexual nature that has the purpose or effect-65 Go Kidz G o Ltd. v Bourdouane E AT case 110/95 (Sept 10, 1996) 66 [2003] UKHL 3467 [2007] EWHC 483 (Adm in), [2007] IRLR 32768 2002/73/ EC416 STELL LR 2009 3 © Juta and Company (Pty) (i) of violating her dignity, or (ii) of creating an in......
-
The Sex Discrimination Act 1975 (Amendment) Regulations 2008
...and otherwise comply with the High Court Order in Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] EWHC 483 (Admin) in relation to the definitions of harassment and discrimination on grounds of pregnancy or maternity leave and the exception relating to terms......