Amendments to Sex Discrimination Act 1975 finally published

United Kingdom

The Sex Discrimination Act 1975 (Amendment) Regulations 2008 have finally been published and come into force on 6th April 2008. The regulations make various changes to the Sex Discrimination Act 1975 so that this now complies with the Equal Treatment Directive (76/207/EEC).

Definition of sex harassment

The regulations expand the definition of sex harassment. They remove the causal link between the effect of the unwanted conduct and the sex of the person being harassed (removing the phrase “on the ground of her sex” and adding the phrase “related to her sex or that of another person”). This change means that claims can now be made if the unwanted conduct is related to the sex of the victim or any other person, facilitating associative claims such as claims by witnesses -because the person who considers that their dignity has been violated or that the conduct creates an offensive and degrading environment for them need not be the primary recipient of that conduct.

Increased liability for employers for third party harassment

It will be unlawful for an employer to fail to take reasonably practicable steps to protect employees from harassment by third parties where harassment is known to have occurred on at least two other occasions. This means that employers must be increasingly aware of their employees’ treatment by third parties, and take action to prevent harassment, particularly as the regulations make it clear that liability will be incurred irrespective of whether the third party is the same or a different person on each occasion.

Removal of comparator for discrimination on grounds of pregnancy or maternity leave

The requirement of a comparator who is not pregnant nor on maternity leave is eliminated in claims for discrimination on grounds of pregnancy or maternity leave.

Terms and conditions during maternity leave

Women whose expected week of childbirth begins on or after 5 October 2008 will have greater rights. Commentators are suggesting that the changes represent a significant extension in maternity rights. Firstly the regulations make it clear that women are entitled to discretionary bonuses calculated with reference to the two week compulsory maternity leave. In addition, and most importantly, the regulations eliminate the distinction between different types of maternity leave in relation to terms and conditions. Women will now be entitled to the same (non pay) benefits irrespective of the type of maternity leave they are taking. This means that employers who do not currently provide non-cash benefits during Additional Maternity Leave will now be required to do so. This may include gym membership, company car, mobile phone and any contractual leave above the statutory entitlement. This change may therefore have significant cost and administrative implications for some employers.

To access a copy of the Regulations please click here