Imminent changes to the Sex Discrimination Act

Definition of Harassment

The amendment to the definition removes the causal link between harassment and the sex of the person being harassed. person that complains of harassment will only be required to show that the alleged treatment was connected or associated with sex, not that it took place because the complainant was a man (or woman).

Claims may also be made by someone who is not subject to the unwanted conduct him or herself, but the effect of which nevertheless violates his or her dignity or creates an intimidating environment. Employers will need to be extra vigilant to ensure that sexist banter is not commonplace.

Harassment by Third Parties

An important change is the additional potential liability of employers who fail to take reasonable steps to protect employees from harassment by third parties. From April 6th an employer will be liable for sex discrimination where a third party subjects an employee to sex related or sexual harassment, if they have failed to take reasonably practical steps to prevent the third party from doing so. It does not matter whether the third party is the same or a different person on each occasion, as long as the employer knew that the complainant had been subject to harassment in the course of employment on at least two previous occasions.

Potential action for employers:

• Check rules and procedures in place for reporting allegations of harassment
• Train staff and managers to deal with potentially difficult conversations with clients and customers
• If it is possible to do so inform third parties about the Company's policy of non discrimination

Discrimination on Grounds of Pregnancy or Maternity Leave

The amended definition eliminates the requirement of a comparator who is not pregnant or on maternity leave. Now a woman will only have to show that she has been treated less favourably on the grounds of her pregnancy or the fact that she has taken or sought to take statutory maternity leave.

Terms and Conditions of Employment during Maternity Leave

Where the expected week of childbirth begins on or after 5 October 2008, the new Regulations have amended the Sex Discrimination Act by removing the distinction between ordinary and additional maternity leave. This means that a woman may have a claim if she is not given the same (non-remuneration) benefits during additional maternity leave as she has during ordinary maternity leave. Private use of a company car, mobile phone, annual leave and subscriptions will continue to apply during additional maternity leave as well as ordinary maternity leave.

The 2008 Regulations also amend the Sex Discrimination Act so that when calculating bonuses, the time when a woman is on compulsory maternity leave (i.e. the 2 week period immediately following childbirth) must be included as though the employee had been working normally. Whilst this is already the case in the calculation of contractual bonuses the amended regulations require the same principle to be applied to non-contractual bonuses.

It is worth checking those maternity policies now!