Changes to Sex Discrimination Act come into force

The former Equal Opportunities Commission (EOC) successfully brought judicial review proceedings against the Government in relation to some of the amendments to the Sex Discrimination Act 1975 to implement the Equal Treatment (Amendment) Directive.  The Court’s judgment required the Government to make some changes to provisions in the Sex Discrimination Act 1975 (SDA)on harassment, pregnancy and maternity leave.

The Sex Discrimination Act 1975 (Amendment) Regulations 2008 making the required changes came into effect on 6 April 2008 for all amendments, other than Regulation 5 relating to terms and conditions during maternity leave, which will apply to employees whose expected week of childbirth (EWC) begins on or after 5 October 2008. The changes are set out below.

Regulation 2 amended the definition of discrimination on grounds of pregnancy or maternity leave in S.3A SDA so that the requirement for a woman to compare her treatment to that of a woman who is not pregnant or not exercising a right to maternity leave is abolished.

Regulation 3 amended S. 4A(1)(a) of the SDA which stated that a person subjects a woman to harassment if on the ground 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. The Regulation changed the words in italicised text to ‘he engages in unwanted conduct that is related to her sex or that of another person and’. As a result, a claimant is only required to show that the alleged treatment was connected or associated with sex and not that it took place because the complainant was a woman (or man). The change also enables claims to be made by someone who is not subjected to the unwanted conduct himself or herself but the effect of which nonetheless violates his or her dignity or creates an intimidating environment.

Regulation 4 added new Ss.6(2B)-(2D) to the SDA making it unlawful for an employer to fail to take reasonably practicable steps to protect employees from harassment by third parties, e.g. a customer or a supplier, where such harassment is known to have occurred on at least two other occasions.

Regulation 5 amends S.6A SDA to narrow the extent to which it is not discriminatory to deprive a woman of the benefit of her terms and condition of employment during maternity leave. The first amendment makes discrimination claims possible by a woman on maternity leave for non-payment of a discretionary bonus relating to the two-week period of compulsory maternity leave. The second amendment enables claims for discrimination in relation to terms and conditions of employment in relation to periods of additional maternity leave to the same extent to which they are available in relation to periods of ordinary maternity leave.

The Government acknowledges that as the amendments under Regulation 5 may have a significant impact on employers, they will only apply to those whose EWC begins on or after 5 October 2008. With regard to the second amendment, in particular, it means that women on additional maternity leave may be able to seek a remedy under discrimination law if they are not awarded the same non-pay benefits of terms and conditions as when on ordinary maternity leave. This represent a major extension to statutory maternity rights.

As a consequence of the changes in Regulation 5, the Department for Business, Enterprise and Regulatory Reform will be making amendments to the Maternity and Parental Leave Regulations 1999 and expects to bring these into force in October of this year, also applying to employees with an EWC beginning on or after 5 October 2008. This will provide time for business to prepare for these changes.