European Union Directive requiring national legislation on sexual harassment

In 2002 the European Parliament approved a European Equal Treatment Amendment Directive (2002/73) that required all member states to adopt national sexual harassment legislation by 2005 or, if they had them already, to revise them to ensure consistency across member states.

The measure was introduced as an amendment to the 1976 ‘Equal Treatment Directive’, which had established the principle that men and women should be treated equally ‘in regards to access to employment, vocational training and promotion, and working conditions’.

Amongst other requirements, it outlined two forms of harassment (sex-related and sexual) that were deemed to be prohibited as forms of sex discrimination:

– 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,

– sexual harassment: where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.

In the UK case law had evolved since the 1980s to view sexual (and sex-related) harassment as unlawful under the Sex Discrimination Act 1975, but it had never been defined through statute law itself. Following the European Commission’s recommendation of 1991, legislation had been enacted in Sweden, France, Austria, Germany, Netherlands, Italy, Belgium, Finland, Ireland and Luxembourg.

In response to the 2002 Directive, the UK Government introduced the Employment (Equality) Sex Discrimination Regulations 2005 (as a Statutory Instrument). However, the Equal Opportunities Commission (EOC) sought a judicial review of these regulations on the grounds that they did not reflect the 2002 Directive correctly. The High Court (which carried out the review) agreed in part with the EOC in March 2007 and the government agreed to change the regulations as a result.