Why change the Sex Discrimination Act again?

The Sex Discrimination Act (SDA) was last given a comprehensive overhaul in 2005, when the changes included inserting a free-standing definition of harassment and including provisions dealing specifically with discrimination on grounds of pregnancy or maternity leave.

However, further amendments, which for the most part took effect in April 2008, were needed to respond to successful judicial review proceedings brought by the Equal Opportunities Commission in 2007.

The new definition of harassment

The original 2005 definition of harassment required a causal link between the harasser and the sex of the victim. The 2008 changes widen the definition, so it is now satisfied if the harassment is sexually related, even if it is not “on the grounds” of the victim’s sex. The importance of this distinction is illustrated by a recent decision under the sexual orientation regulations, which still adopt the old-style harassment definition. In that case the victim was subjected to homophobic abuse but was deprived of a remedy because his harassers did not believe him to be gay (he was not).

There was also another problem with the old definition: it did not deal with the possibility that employers could be liable for harassment of their staff from customers and other third parties. The new definition now provides that, in appropriate circumstances, an employer can be liable for third-party harassment.

It incorporates a “three strikes” rule so that an employer will be liable if it knows about the harassment, it has occurred on at least two previous occasions (though the perpetrator need not be the same each time) and the employer has not taken reasonable steps to prevent it. This is particularly relevant for local authority and other public sector employers, where employees may be expected to work in challenging circumstances in order to deliver public services.

Protecting terms during maternity leave

Another troublesome area concerns the treatment of women on maternity leave. It is clear that a woman does not need to receive her normal pay during statutory maternity leave, but under the old SDA there was a distinction between ordinary maternity leave (OML) and additional maternity leave (AML) in relation to other terms and conditions. Under the old SDA, it was only during OML that a woman retained the benefit of all her terms and conditions (except those “relating to remuneration”).

Under amendments that will take effect for women whose babies are expected from 5 October onwards, this distinction has been abolished. Quite what it will mean in practice is unclear until the definition of remuneration for these purposes is clarified. But employers may have to make some adjustments. One obvious example is the need to check that employees are not prevented from accruing contractual holiday entitlement during AML.