Changes to Sex Discrimination and Maternity Legislation

Changes to Sex

Discrimination

and Maternity

Legislation

Amendments to sex discrimination and maternity

legislation are expected to cost employers an extra £156

million per year. The extra costs will fall on employers who

currently provide their employees with non-pay benefits,

such as a company car, during ordinary maternity leave

but cease providing them during additional maternity

leave.

Back in March 2007, the former Equal Opportunities

Commission (EOC) was successful in its judicial review

proceedings against the Government over the implementation of

the European Equal Treatment Directive.

The EOC challenged the Employment Equality (Sex

Discrimination) Regulations 2005 (which came into force on 1st

October 2005), arguing that the Regulations did not provide the

full protection against sexual

harassment and pregnancy

discrimination required by the

Directive, and that women could

lose aspects of existing maternity

rights already established in UK

case law. The EOC was also

concerned that the lack of clarity

in the Regulations could produce

uncertainty about the extent of

legal rights and obligations for

both employers and employees.

The Judge ruled that the Government had failed to comply with

its obligation to implement the Directive properly and

consequently sections of the Sex Discrimination Act 1975

needed to be recast. Details of the proposed remedial action

were finally published on 14th March 2008.

The Sex Discrimination Act 1975 (Amendment)

Regulations 2008 amend the Sex Discrimination Act regarding

the definition of harassment, pregnancy discrimination and

terms and conditions during additional maternity leave and come

into effect on 6th April 2008. However, the changes relating to

terms and conditions during additional maternity leave will apply

only to employees whose expected week of childbirth begins on

or after 5th October 2008.

Appropriate amendments are also to be made to the Maternity and

Parental Leave etc Regulations 1999 with effect from October

2008, which will also apply to employees with an expected week

of childbirth beginning on or after 5th October 2008.

The main changes made by the Sex Discrimination Act 1975

(Amendment) Regulations 2008 are as follows:

• the definition of harassment is explicitly widened to ensure that

employees are not subjected to any unwanted conduct related to

the sex of a person (as opposed to merely on the grounds of their

sex) which violates their dignity or creates an intimidating, hostile,

degrading, humiliating or offensive environment;

• explicit protection is given to employees harassed by clients of the

employer, where their employer knows of two previous instances of

such harassment and fails to take steps to prevent it recurring;

• the requirement for pregnant women to show that they had been

treated worse than they would have been before they were

pregnant – the need for a so-called "comparator" is removed.

Women have different needs when

they are pregnant, so it does not

always make sense for a woman to

compare her situation with what

would have happened had she not

been pregnant. Women occupy a

special position during pregnancy

and maternity leave which in some

circumstances requires them to

have special protection, such as a

risk assessment, which they would

not have needed had they not become pregnant; and

• women's rights during maternity leave are clarified (to an extent)

where their expected week of childbirth is on or after 5th October

2008. Women are entitled to be consulted about changes to their

jobs while on maternity leave, time on additional maternity leave

counts towards length of service for promotion or other benefits,

women are protected from sex discrimination where they are

denied non-pay benefits during additional maternity leave, such as:

company car; mobile phone; gym membership; contractual annual

leave above the statutory minimum; consultation about

organisational changes; receiving an appraisal etc.

Separate regulations are being brought forward in Northern Ireland to

make equivalent changes to the Sex Discrimination (Northern

Ireland) Order 1976. At the time of writing, no implementation

dates had been published for Northern Ireland. We will confirm these

when known in a future issue of this publication.

Date: 07/07/2008
Category: BUSINESS EDITORIAL