IBA Vancouver Tuesday 5 October 2010: 1500 - 1800

1. IBA VancouverTuesday 5 October 2010: 1500 - 1800 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 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

2. 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 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

3. 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 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

4. 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 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

5. 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 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

6. 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 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

7. 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 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

8. 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 policieswhich cover third parties; CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

9. 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 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

10. 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 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

11. 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 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

12. Speaker Details If you have any questions, please do not hesitate to contact: Bettina Bender, Partner CM Murray LLP 37th Floor One Canada Square Canary Wharf London E14 5AA United Kingdom Phone: 00 44 (0)207 718 0090 Email: bettina.bender@cm-murray.com Website: www.cm-murray.com CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law