Wednesday, 2 April 2008

Did EU Ban Calling Bar Staff 'Darling'?

A peculiar story turned up yesterday. It being the topic of the headline of the April 1 Daily Sport, I thought it might have been an April Fool's joke. But apparently not, since the tale of Harriet Harman using EU law to ban pubgoers from calling barmaids "darling" or making risque jokes also appeared in the Sun, Daily Mail and Evening Standard.

OK, so maybe it wasn't intended as a joke. But is it true - or just a bit of tabloid mischief?

Some fairly serious people have made statements on this 'EU legislation'. The Daily Mail/Evening Standard* quotes Stephen Alambritis of the Federation of Small Businesses, who described it as "heavy-handed" and "unfair to employers", and at the Cornerstone Group blog Tory MP Brian Binley talks of a "ridiculous new regulation" that will "place a burden of £10 million per year on small businesses".

The Daily Mail article names the regulation of concern as being part of the European Equal Treatment Directive (1976), which deals with equality between men and women in matters of employment and occupation (76/207/EEC (PDF)). This directive was amended in 2002 (2002/73/EC (PDF)) and consolidated in 2006 (2006/54/EC (PDF)). Definition d) in Article 2 of the latter defines 'sexual harassment' (as part-quoted in the Daily Mail article) as:

"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."
and point 2 of the same article states that the definition of "discrimination" includes 'sexual harassment'.

Article 26 of the new Equal Treatment Directive states that EU member states are directed to " take effective measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment in the workplace...". Governments are requested by article 33 to bring into force laws and regulations required to comply with directive 2006/54/EC by 15 August 2008.

The Daily Mail article describes Harriet Harman as having used a statutory instrument to push through amendments to existing sex discrimination law without parliamentary debate. The amendment to the Sex Discrimination Act (1975), SI 2008/656 (PDF), was laid before Parliament on 14 March. Section 4 of this amendment reads as follows:

4. In the 1975 Act, after section 6(2A)(7) (unlawful harassment) insert—

(2B) For the purposes of subsection (2A), the circumstances in which an employer is to be treated as subjecting a woman to harassment shall include those where—

(a) a third party subjects the woman to harassment in the course of her employment, and

(b) the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so.

(2C) Subsection (2B) does not apply unless the employer knows that the woman has been subject to harassment in the course of her employment on at least two other occasions by a third party.

(2D) In subsections (2B) and (2C), “third party” means a person other than—

(a) the employer, or

(b) a person whom the employer employs,

and for the purposes of those subsections it is immaterial whether the third party is the same or a different person on each occasion..

The definition of harassment that is being used here was introduced by section 5 of another statutory instrument back in 2005 (PDF), and implements the definition given in the EC directive.

The tabloid articles have certainly sensationalised this development, but as I hope the above has shown they were certainly not made from whole cloth. The EU legislation, that has been cited by the Equalities Office as the impetus for the amendment, is not clear on the specific subject of harassment of employees by third parties, such as pubgoers. It seems that, once again, the Government have piggybacked on an EU directive to bring in legislation that is rather more far-reaching than required.

The combination of the wide and subjective definition of harassment and the new amendment could (while rather unlikely) have the effect described in the newspaper articles. The Daily Mail article in particular, beyond the lurid headline and first paragraph, describes the new legislation and potential consequences, that are discussed by the Equalities Office themselves in an explanatory memorandum (PDF), very accurately.

The use of a statutory instrument to bring in a significant change in Law like this without Parliamentary debate, one not actually required by the cited EU Directive, is deplorable.

* The article is virtually the same at both sites.


TBRRob said...

This is mental. How do they expect landlords to impose this.

Having worked in many pubs it would be impossible. Also many bar maids make a good buck by flirting with patrons.

This is typical of the 'High minded' bastards who now run our country. They have no idea how things work in the real world.

Mark Wadsworth said...

As long as barmaids do not cross the line and ever go out with a punter, this is all fine.

But I knew a barmaid once who was fit as a fox who actually ended up going out with a punter, which of course just encourages the sad lonely gits who go to a pub because they fancy the barmaid to try and chat up those barmaids who don't have the slightest interest in sad lonely gits ... etc.

Good research anyway!