The Government has announced that regulations to amend the Sex Discrimination Act 1975 will not now come into effect on 1 October 2007 as originally announced, but will be made at “the earliest opportunity”.
In March this year, the High Court decided in the case of Equal Opportunities Commission v Secretary of State for Trade and Industry that the Sex Discrimination Act 1975 (SDA) (as amended by the Employment Equality (Sex Discrimination) Regulations 2005) does not adequately implement the revised EC Equal Treatment Directive 2002/73/EC, both in respect of harassment and of pregnancy and maternity discrimination (see below). The Government confirmed in April 2007 that regulations to amend the SDA and implement the High Court’s ruling would take effect from 1 October 2007. It would now appear that the Government is still working on the fine detail of the regulations and that they will not now come into force on that date. It is not expected, however, that the Government will wait until 6 April 2008 (the next official implementation date for employment legislation) and the regulations are likely to take effect some time before then.
The High Court decided that the SDA should be amended to bring it into line with EC law, so that:
- harassment “related to sex” should be made unlawful (currently the SDA makes harassment “on the grounds of sex” unlawful)
- a woman should be able to make a complaint of harassment when the conduct complained of is directed at, and relates to the sex of, a third party (in circumstances where it violates the woman’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for her)
- employers should be liable to their employees for harassment by third parties (such as clients or suppliers) in circumstances where they have knowingly failed to act to protect them from repetitive harassment by such a person
- it should be made clear that a woman can bring a sex discrimination claim if she is deprived of non-contractual benefits during the compulsory maternity leave period (the two week period immediately after birth)
- the requirement for a comparator in cases of discrimination on the grounds of pregnancy/maternity leave should be removed, as EC law does not permit the comparison with the woman’s situation had she not become pregnant/taken maternity leave
- the same rights to bring a sex discrimination claim should apply during both ordinary and additional maternity leave.
What are the proposed new regulations likely to mean to employers?
No draft of the regulations has yet been published and so it is not possible to be exact in advising our clients as to their content. The High Court’s decision gives some indication as to the direction the regulations will have to take. A practical consequence of the changes which need to be made to the law of sexual harassment, is that employers will have to amend their policies and train line managers to recognise and deal with harassment of their employees by third parties, such as clients or suppliers. The most significant impact of the proposed regulations, however, is likely to be as regards rights during maternity leave. Currently, a woman on ordinary maternity leave continue to benefit from all contractual rights under her contract of employment apart from remuneration, whereas during additional maternity leave, only certain basic contractual rights continue. It is possible that the new regulations might provide that employees on additional maternity leave will be entitled to the same contractual benefits as those to which they are entitled while on ordinary maternity leave. However, we cannot be certain of this until the new regulations are available. We will of course let you have further information as soon as the regulations have been published.