April changes to Sex Discrimination Act

April 3, 2008

Following last year’s finding by the High Court that UK sex discrimination legislation does not comply with European requirements, regulations aimed at amending the deficiencies have recently been published. The Sex Discrimination Act 1975 (Amendment) Regulations 2008 will amend the Sex Discrimination Act 1975 (SDA) with effect from 6 April 2008.

Background

The EC Equal Treatment Directive requires equal treatment in employment. To ensure consistency of approach across Europe the directive was revised in 2002, imposing new obligations on member states and introducing standard definitions for concepts such as “harassment” and “indirect discrimination”.

The directive was implemented in the UK by the Employment Equality (Sex Discrimination) Regulations 2005, which amended the SDA. But from the outset criticism was raised of their apparent failure to satisfy the requirements of the directive, notably from the former Equal Opportunities Commission (EOC). These objections culminated in a legal challenge of the 2005 regulations through judicial review proceedings last year, a challenge that proved successful.

The new regulations

In line with the directive and the High Court’s ruling, the 2008 regulations will from 6 April:

• introduce a revised definition of sex-related harassment

• impose liability on institutions (and other employers) for sex/sexual harassment where they knowingly fail to protect an employee from repeated harassment by third parties (such as students, customers and other commercial contacts)

• extend the right of protection from pregnancy/maternity discrimination

• for women whose expected week of childbirth begins on or after 5 October 2008, improve rights during compulsory and additional maternity leave, including removing the distinction between ordinary and additional maternity leave in respect of entitlement to non-pay benefits.

A new definition of harassment – what will this mean?

The 2008 regulations address the High Court’s criticism of the definition of harassment introduced into the SDA by the 2005 regulations. Currently, where unwelcome conduct is connected with an individual’s sex but is not “sexual” in nature, it is unlawful only if the perpetrator engaged in that conduct because of the complainant’s sex. This form of harassment (ie “sex-related harassment”) is quite different from “sexual harassment”, which is harassment of a sexual nature and is outlawed by the SDA regardless of whether it is actually directed at the complainant.

The new definition of sex-related harassment is much broader and will apply to unwanted conduct “related to the complainant’s sex or that of another person”. Accordingly, individuals who are not subjected to the unwanted conduct themselves will also receive protection. An example of this might be someone (male or female) working in an environment where sexist banter is commonplace and which, although not directed at that person or caused by their presence, creates an offensive environment for them.

Managers will need to be extra vigilant in circumstances that might offend the above provisions; for example, by not allowing cultures of personal e-mail use or verbal banter to develop in an uncontrolled way.

Harassment by third parties

Even more significant, however, will be the added potential liability of institutions in the face of employee harassment by third parties, such as customers or students.

With effect from 6 April, an institution will be liable for sex discrimination when a third party subjects an employee to sex-related or sexual harassment, but only if the institution has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. This provision will apply only if the institution knows that the complainant has been subject to harassment in the course of employment on at least two other occasions by a third party (though it is immaterial whether the third party is the same or a different person on each occasion).

It is accordingly vital that managers:

• follow appropriate rules and procedures in place for reporting/dealing with allegations of harassment

• provide training for their staff including equipping them with the skills to have potentially difficult conversations with third parties

• where practicable, inform third parties including students, customers and commercial contacts of their policy (which could, for example, be by way of a notice in appropriate cases).

It will be interesting to see whether, as part of the Equality Bill, the Government also reviews the harassment provisions in other discrimination legislation.

Simplified pregnancy/maternity-related discrimination

With effect from 6 April the SDA will be amended to eliminate the requirement of a comparator in cases of alleged pregnancy or maternity discrimination. A woman will instead have to show only that she has been treated less favourably on the ground of her pregnancy or the fact that she has taken, or sought to take, statutory maternity leave.

Ordinary/additional maternity leave distinction removed

The 2008 regulations will also amend the SDA by removing the distinction between ordinary and additional maternity leave. This means that the same benefits should be afforded during additional maternity leave (the second 26 weeks) as in ordinary maternity leave (the first 26 weeks). A separate set of regulations (not yet published) will amend the Maternity and Parental Leave etc Regulations 1999 to remove the distinction between ordinary and additional maternity leave in respect of entitlement to non-pay benefits.

These are significant changes that will mean that during both ordinary and additional maternity leave an employee will benefit from the terms and conditions that would have applied to her had she been at work, except for the terms providing for her remuneration (that is, wages or salary). Therefore, contractual benefits such as annual leave, pensions and so on will continue during additional maternity leave as well as ordinary maternity leave.

This change will apply only to employees whose expected week of childbirth begins on or after 5 October 2008. Between now and then institutions should check and, if necessary, revise their policies and procedures to ensure they are compliant with the new regime.

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