Section 4A(1) provides that a person subjects a woman to harassment if, on the grounds of her sex, he engages in unwanted conduct that has the purpose or effect of violating her dignity or of creating an intimidating , hostile, degrading, humiliating or offensive environment for her.
This definition requires that the harassment must be unwanted conduct which is on the grounds of a woman’s sex, whereas the directive defines harassment as unwanted conduct related to the sex of a person. This means that unlike the SDA definition, the directive extends protection to cover situations where a woman is harassed by conduct which is directed at, and related to the sex of, a third party.
Two recent failed cases illustrate the point. In Brumfitt v Ministry of Defence the training officer addressing a mixed audience generally used sexually explicit language offensive to women. He was found not to have discriminated against the claimant on the grounds of her sex as the comments were not addressed specifically to her. However, it appears likely that she would have succeeded in a claim under the wider proposed definition. Similarly, as happened in Kettle Produce Limited v Ward, a manager barging into the ladies toilet, when he would be likely to have similarly barged into a men's toilet, may not render his employer liable for discrimination on grounds of sex, but such conduct would be likely to be conduct related to sex.