Amendments to the Sex Discrimination Act

Last year, the former Equal Opportunities Commission brought judicial review proceedings against the Government regarding some of the provisions of the Employment Equality (Sex Discrimination) Regulations 2005, which made amendments to the Sex Discrimination Act 1975 (SDA) in order to implement the Equal Treatment (Amendment) Directive. The Court judged that the Regulations did not fully implement the Directive and so the Government was required to make amendments to the SDA with regard to pregnancy and maternity leave, discrimination and harassment.

The Sex Discrimination Act 1975 (Amendment) Regulations 2008, which make these changes to the SDA, came into force on 6 April 2008.

Specifically, the definition of sexual harassment has been expanded to include unwanted conduct that is ‘related to her sex or that of another person’. The change will enable a claim to be made by someone who is not the subject of the unwanted conduct but where its effect is to violate that person’s dignity or to create an intimidating environment for them.

As regards an employer’s liability for the harassment of employees by a third party, it becomes unlawful for an employer to fail to take reasonably practicable steps to protect an employee from harassment by a third party where such harassment is known to have occurred on at least two other occasions. The person responsible for the harassment does not have to be the same on each occasion.

Changes regarding pregnancy and maternity are the removal of the requirement for a comparator who is not pregnant or not on maternity leave, when a woman brings a claim for discrimination on these grounds and there must also be no difference between the contractual benefits allowed to women who are on compulsory, ordinary or additional maternity leave.

The changes that the Government is required to make to the SDA relating to terms and conditions during maternity leave will apply to employees whose expected week of childbirth begins on or after 5 October 2008. This will provide time for businesses to prepare for these changes.

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