Liability for harassment

Case 2: The facts

Mr McDermott, the assistant chief constable of the Ministry of Defence (MOD) Police, made remarks to staff officer Ms Caspersz which amounted to sexual harassment. He also failed to deal properly with a stalking incident she had suffered. When Caspersz complained about the harassment, the MOD suspended McDermott and dismissed him after an investigation. The issue was whether the MOD was liable for the harassment.

The ruling

Under section 41 of the Sex Discrimination Act (SDA), an employer has a defence to a claim of discrimination (including harassment) if it can show that it took such steps as were reasonably practicable to prevent an employee from committing discriminatory acts.

The test, the Employment Appeal Tribunal (EAT) said, is whether the steps taken were reasonably practicable and not whether they were effective – if they had been effective, there would have been no discrimination case to answer.

The EAT held that an equal opportunities policy can by itself amount to a defence, as long as it is “good and proper” and “conscientiously implemented”. In this case, the MOD had implemented a Dignity at Work policy, and took steps as soon as it was aware of the complaints. Therefore it had established that it had a defence under the SDA, so Caspersz’s claim was dismissed.

Caspersz v Ministry of Defence UKEAT/0599/05