|
Sex discrimination
On 6 April 2008, the recently published amendments to the Sex Discrimination Act 1975 will come into force. The Sex Discrimination Act 1975 (Amendment) Regulations 2008 arose out of the EOC's challenge to the Employment Equality (Sex Discrimination) Regulations 2005. The EOC successfully argued that the Regulations did not adequately implement the Equal Treatment Directive.
Harassment
Harassment, as currently defined in the Sex Discrimination Act 1975 (SDA), must be "on grounds of" the individual's sex. However, European legislation merely requires that the harassment should relate to sex and therefore covers a wider range of conduct. The definition of harassment in the SDA will be widened to conform to the European approach – the phrase "on grounds of" will be replaced with "related to". As a result, an individual will only need to show the alleged harassment was connected to sex, not that it took place because of her sex. Harassment will therefore cover, for example, cases where an employee is offended by sexist remarks directed at another person. Employers should reflect this message in their Equal Opportunity Policy and diversity training for employees.
Harassment – liability for third party action
The Regulations will impose liability on an employer when an employee is harassed by a third party (i.e. not the employer or another employee) where:
- the woman is subject to harassment by the third party in the course of her employment;
- the employer fails to take such steps as would have been reasonably practicable to prevent the third party from doing so; and
- 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 (not necessarily the same one).
While employers will have a duty of care to ensure that third parties do not engage in acts of harassment, an employer will not be liable until an individual has been subjected to harassment twice before. Many employers already ensure customers, contractors and clients are aware that harassment of its staff is not acceptable. Nevertheless, employers should review their procedures and ensure it is clear that harassment of staff is not acceptable and take action when notified of such harassment.
Pregnancy and maternity
The Regulations will change an individual's rights to certain terms and conditions during maternity leave. Currently, during ordinary maternity leave (OML), an employee's contract continues and she must be treated in all respects (except in relation to remuneration) as if she were not absent. An employee has fewer rights during additional maternity leave (AML). Subject to exceptions (such as the employer's implied duty of trust and confidence, notice rights, disciplinary and grievance procedures) a woman is not entitled to any other benefits of the terms and conditions of her employment during AML. Therefore the scope for bringing sex discrimination claims during AML is severely limited.
For women whose expected week of confinement (EWC) starts on or after 5 October 2008 the current distinction will be removed and women will have the right to the same terms and conditions during AML as they currently enjoy under OML. The Maternity and Paternity Leave Regulations (which make the same distinction) will be amended to reflect this before 5 October 2008.
This significant development means women will be entitled to benefit from all their terms and conditions, except remuneration, during the whole period of their maternity leave. This will impact on those employers who currently provide non-pay benefits (such as health insurance, life insurance, contractual holiday accrual, company cars etc) only during OML and not during AML. In relation to pension contributions, employers are currently only required to make employer contributions during any period of contractual or statutory paid maternity leave (such as the 39-week SMP period) or, if the employee does not qualify for paid maternity leave, just during OML. However, once the Maternity and Parental Leave Regulations are amended it is likely that employers will be required to continue their pension contributions for the whole of the maternity leave period, whether paid or unpaid. Employers should ensure that, from 5 October 2008, their policies and practices no longer distinguish between OML and AML in relation to non-pay benefits and budget for the increased cost.
The Regulations will also remove the requirement for there to be any form of comparator in pregnancy or maternity-related discrimination cases, bringing the SDA in line with European legislation.
Further, the SDA will be amended so that, for women whose EWC starts on or after 5 October 2008, compulsory maternity leave must be treated as time worked for discretionary bonus purposes. This is in line with amendments to the Equal Pay Act 1970 in relation to contractual bonuses.
Other developments
Other developments taking place on 6 April 2008 include:
- statutory maternity, paternity and adoption pay will increase from £112.75 to £117.18;
- SSP will increase from £72.55 to £75.40;
- the Information and Consultation of Employees Regulations 2004 will cover employers with 50 or more employees;
- the Corporate Manslaughter and Corporate Homicide Act 2007 will come into force.
|