In October 2005, the Sex Discrimination Act 1975 was amended in light of changes made in Europe to the Equal Treatment Directive, in particular introducing new sections relating to pregnancy discrimination and sexual harassment.

While the 2005 changes should have improved protection for women, the Equal Opportunities Commission have challenged the 2005 changes as still failing to protect women to the extent required by the directive and in some respects being a retrograde step with women potentially losing aspects of existing maternity rights established in UK case law.

In a judicial review, the High Court has agreed that the 2005 changes do not adequately implement the Equal Treatment Directive. As a result, s4A (harassment, including sexual harassment), s3A (discrimination on the grounds of pregnancy or maternity leave) and s6A (exception relating to terms and conditions during maternity leave) will need to be recast.

Harassment (s 4A)

Section 4A(1) provides that a person subjects a woman to harassment if, on the grounds 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.

This definition requires that the harassment must be unwanted conduct which is on the grounds of a woman’s sex, whereas the directive defines harassment as unwanted conduct related to the sex of a person. This means that unlike the SDA definition, the directive extends protection to cover situations where a woman is harassed by conduct which is directed at, and related to the sex of, a third party.

Two recent failed cases illustrate the point. In Brumfitt v Ministry of Defence the training officer addressing a mixed audience generally used sexually explicit language offensive to women. He was found not to have discriminated against the claimant on the grounds of her sex as the comments were not addressed specifically to her. However, it appears likely that she would have succeeded in a claim under the wider proposed definition. Similarly, as happened in Kettle Produce Limited v Ward, a manager barging into the ladies toilet, when he would be likely to have similarly barged into a men's toilet, may not render his employer liable for discrimination on grounds of sex, but such conduct would be likely to be conduct related to sex.

Vicarious Liability

The EOC also objected to the absence of provisions which would allow an employer to be vicariously liable for discriminatory acts carried out by customers or clients.

A recasting to include vicarious liability for acts of third parties will effectively restore the position prior to the 2003 House of Lords decision in Pearce v Governing Body of Mayfield Secondary School which had overruled the early case of Burton v De Vere Hotels Limited (known as the Bernard Manning case in which the catering business employer was held liable for the racist and sexual harassment of two waitresses working at an event where Mr Manning was performing). Accordingly, in future employers will need to take steps to protect employees from continuing and/or regular objectionable conduct from clients.

Pregnancy (s3A)

Prior to the 2005 changes, pregnant women did not have to show that they had been treated worse than they would have been before they were pregnant - the need for a “comparator”. The High Court acknowledged that women occupy a special position during pregnancy and maternity leave and that the 2005 change was a retrograde step which should be recast removing the current “comparator” hurdle.

T&Cs during maternity leave (s6A)

The High Court agreed with the EOC that s6A(1) did not adequately provide protection in respect of discretionary bonuses paid during compulsory maternity leave (two weeks in most cases). The recommended change will expressly reflect the position as established by the ECJ in Lewen v Denda and applied in the UK in Hoyland v Asda. When calculating a contractual bonus entitlement for an employee who had been on maternity leave during the relevant year, no reduction can be made for the period of compulsory maternity leave.

The court also agreed with the EOC that in relation to additional maternity leave, the 2005 regulations are unclear whether a woman is protected if she is not consulted about a change to her job while on maternity leave or if she falls behind in a queue for promotion because time on AML is excluded from length of service.

The recommended change will again confirm the generally accepted position reflected in the current government guidance of examples of benefits that continue to apply during additional maternity leave, eg being informed and consulted on pending redundancies, changes affecting their job or working conditions and information about pay rises, bonuses, training, promotions or vacancies and the right to appraisal.

So what happens next?

The government has confirmed that it does not intend to appeal the ruling and will be making the statutory changes “as soon as reasonably practicable” in consultation with the EOC. The most significant proposed change in practice will be in relation to the definition of harassment extending the scope of possible sexual harassment claims. This may also have implications for other areas of discrimination law as equivalent provisions relating to harassment also use similarly flawed definitions which logically must also fail to correctly implement the relevant directive.