Changes to the Sex Discrimination Act 1975 ("SDA") and the regulations governing the operation of maternity leave that apply to employees who give birth on or after 5 October 2008, are now in full force and effect.

Under the current law, it will be unlawful sex discrimination to deprive a woman of the benefit of any of her terms and conditions of employment (except those dealing with remuneration), during either her ordinary or additional maternity leave period. The recent changes have removed the previous distinction between ordinary and additional maternity leave, meaning that employees now have the right to receive all non-monetary benefits pursuant to their contract and accrue annual leave at a consistent rate, throughout their entire period of maternity leave.

Non-monetary benefits in this respect can encompass a variety of matters, such as the right to use a company mobile phone or company car, health insurance, the availability of subsidised gym membership and the provision of child care vouchers. The continued provision of such benefits during the additional maternity leave period could therefore prove to be costly for some employers. Failing to ensure compliance in relation to the new law however could result in a finding of unlawful sex discrimination.

We recommend that employers should carefully consider the scope of non-monetary benefits provided to staff and ensure that they are provided. Where necessary, policies and practices should be updated to avoid falling foul of the amended SDA. The corresponding law relating to adoption leave has been also been amended.