In this eNewsletter:
 EMPU Contacts  Alan Masson Direct Dial: Email:   Andrew Brown Direct Dial: Email:
Where are we?1 Rutland Court,
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Sex Discrimination Act 1975 (Amendment) Regulations 2008 In March 2007 the Equal Opportunities Commission successfully brought judicial review proceedings against the UK Government contending that the Sex Discrimination Act 1975 did not properly implement the Equal Treatment Directive. The Government has therefore implemented the Sex Discrimination Act 1975 (Amendment) Regulations 2008 which make several changes to the Sex Discrimination Act 1975 and come into force on 6 April 2008.
Definition of harassmentThe words, “on the ground of her sex, he engages in unwanted conduct that” (emphasis added), at section 4A of the Act, will be replaced by, “he engages in unwanted conduct that is related to her sex or that of another person and” (emphasis added). A person will therefore be able to claim that they are being subject to harassment, contrary to the Act, even where the conduct relates to the sex of another person. This may include, for example, where somebody has been offended by sexist remarks made about another person. If the individual can show that the comment has created an offensive or degrading environment for them, it will not matter that the harassment relates to another individual, or even that they are not of the same sex as the person who is the subject of the comment. This will bring sex discrimination into line with other forms of unlawful discrimination. Employers will be liable for acts done by third parties.An employee who has been subjected to harassment on two or more previous occasions, with the knowledge of her employer, will be able to bring a claim against her employer if the harassment happens on a third occasion. The employer will be liable if it has failed to take “reasonably practicable steps” to protect that employee from harassment. Curiously, the third party can be different on each occasion and the claim can still be raised but the employee can only raise a claim if she herself has been harassed on three occasions. Employers will not be able to “turn a blind eye” to acts of harassment simply because they have been conducted by clients or other non employees. Comparators in claims of discrimination on the grounds of pregnancy or maternity leave.Deletions to section 3A of the Act mean that those claiming discrimination on the grounds of pregnancy or maternity leave will no longer need to refer to a comparator.
Discretionary bonuses: compulsory maternity leave will countCurrently, the two week period of Compulsory Maternity Leave does not have to be counted as working time for the purposes of calculating bonuses. The regulations amend this for women whose EWC starts on or after 1 October 2008 such that bonuses should be calculated as if the employee had been at work throughout that two week period.
Terms and conditions during maternity leaveAt present, during Ordinary Maternity Leave (“OML”) (the first 26 weeks) women are entitled to the same benefits as if they were working, with the exception of pay. Instead, they receive statutory maternity pay. During Additional Maternity Leave (“AML”) (the second 26 weeks) the situation is quite different and women only have certain limited rights and obligations under their terms and conditions. The regulations change this in relation to women whose expected week of childbirth begins on or after 5 October 2008. In relation to these women, the same non-cash benefits as currently apply during OML will apply throughout both OML and AML. Employers who provide benefits such as gym membership, private healthcare or a company car will therefore be obliged to continue providing these benefits throughout the entire 52 weeks that an employee is absent on maternity leave. These rights apply to all employees who fulfil the relevant criteria, regardless of their length of service. Employers should review their benefits programmes now to ensure that appropriate arrangements are made for these to continue for those employees who will have the right to retain these next year. Further informationFor further information on the issues raised in this E-Zine, or any other discrimination or employment related business, please contact Alan Masson, Andrew Brown, or your usual contact in the Employment Team.
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