Last year the Equal Opportunities Commission (now the Equality and Human Rights Commission) brought successful Judicial Review proceedings arguing that recent Regulations amending the Sex Discrimination Act 1975 did not comply with European law as they failed to give the full extent of protection required to bring the Act into line with European case law.
As a consequence the Sex Discrimination (Amendment) Regulations have been introduced. The Regulations, which came into force on 6th April 2008 further amend three areas of the Sex Discrimination Act. Specifically, S3A (discrimination on the grounds of pregnancy or maternity leave), S4A (prohibition of harassment) and S6A (exceptions to the right to claim discrimination in respect of terms and conditions of employment during maternity leave).
Discrimination on the grounds of pregnancy or maternity leave
S3A previously required a Claimant to perform a comparison of her treatment with that of a women who was not pregnant or exercising her right to maternity leave. This section has now been amended so that women are no longer required to make such a comparison, they just have to show less favourable treatment by reason of their being pregnant or exercising their right to maternity leave.
Prohibition of harassment
S4A previously limited claims of harassment that could be brought against employers because it did not expressly include third parties such as clients or customers. Employers may now be liable for harassment of employees by such persons if they knew that harassment related to sex had occurred on more than two occasions and failed to take reasonably practicable steps to prevent harassment.
To protect themselves from liability employers should make it clear to third parties, by written warnings or notices, that even single potentially unlawful acts will not be tolerated. This is because under the new provision the separate incidents of harassment amounting to the requisite minimum of three incidents need not be by the same person but could, for example, be acts of three different clients. In addition employers would be wise to amend their policies to include third party harassment, to give training to employees and to consider what further preventative steps can be taken to prevent potential harassment or further occurrence if an incident does occur.
A further limitation which has been removed from S4A is the old requirement for harassment to be on the ground of a woman’s sex. It now only has to be related to her sex or that of another person.
Exceptions to the right to claim discrimination in respect of terms and conditions of employment during maternity leave
S6A previously limited the protection of contractual entitlements to non pay benefits so that entitlement continued during Ordinary Maternity Leave only. Now, for women whose expected week of confinement falls on or after the 5th October 2008, contractual entitlement to such benefits will continue into Additional Maternity Leave.
To protect against claims under this Section of the Act, employers should review and amend their policies and practices relating to non cash benefits such as company cars, gym membership, mobile phones etc.
Amendment has also been made to S6A so that women are entitled to payment of discretionary bonuses during their two week compulsory maternity leave. Again policies and practices regarding bonuses should be reviewed and amended to protect against claims.
Comment
Whilst the amendments increase the protection afforded to women the changes are not considered to be so great that they are likely to open a floodgate of claims. The burden on a Claimant remains high and there are steps that can be taken by employers to reduce the risk of successful claims. Where employees rights are increased, employers have sufficient time to ensure they are prepared for the amendments before they come into effect.
Veronica Colegate · May 12, 2008