The Employment (Equality) Sex Discrimination Regulations 2005 provided the first formal definition of harassment through (secondary) legislation. The regulations were brought in by the UK government (as a Statutory Instrument) in response to the European Union Directive of 2002 relating to the equal treatment of men and women (2002/73). The 2002 Directive required all member states to adopt or revise national sexual harassment legislation by 2005.
The 2005 regulations offered the following definition of harassment:
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.
The regulations applied equally to men as complainants, and they also covered harassment of people who had undergone gender reassignment.
However, the regulations went on to be replaced soon afterwards in 2008.
This was because the Equal Opportunities Commission (EOC) sought a judicial review of the 2005 regulations on the grounds that they did not reflect the 2002 Directive correctly. The EOC argued that clause (a) should have been framed as sex-related rather than referring to behaviour that was conducted ‘on the ground of sex’ (because the latter suggested causation). It also argued that the regulations had failed to make employers liable for third party discrimination (including harassment) by customers, clients or visitors.
The High Court (which carried out the review) agreed in part with the EOC in March 2007 (R (EOC) v Secretary of State for Trade and Industry, 12 March 2007 [2007] EWHC 483 (Admin), QBD).