Various changes to the sex discrimination legislation will take effect from 6 April 2008 (with more minor changes being introduced in October 2008) in order to bring the Sex Discrimination Act 1975 into line with EU law.
The key changes
Harassment: need only be related to the victim’s sex
The definition of harassment is amended to refer to unwanted conduct “related to her sex or the sex of another person” rather than unwanted conduct “on the ground of her sex”.
The amended wording more closely matches that of the EU Directive. It also opens the way for claims to be brought by people who are not themselves being harassed, but who are nonetheless offended by the employer’s treatment of another person (e.g. comments about “a woman’s place” offending another male employee) which can amount to harassment.
The amended wording also widens the scope of the harassment definition to include conduct which is related to sex, but is not of a sexual nature (eg. harassment related to characteristics which are more common in women than in men, such as long hair or differences in physical ability).
Harassment: employers liable for third parties
Employers will now be liable if they fail to take reasonably practicable steps to protect employees from harassment by third parties where such harassment occurs in the course of the victim’s employment and harassment of that person by a third party (although not necessarily the same third party) is known to have occurred on at least two other occasions.
This provision imposes an obligation on employers to stop repetitive harassment of an employee by a third party, such as a contractor, supplier or site visitor. The new provision is unusual in many respects. To be protected an employee needs to be harassed by a third party at least three times. In this regard, the legislation protects an employee who is harassed on at least three different occasions by three different third parties. However, the provisions do not go so far as to protect employees from a harasser who harasses a number of different employees on less than three occasions each. The legislation focuses on the propensity of the employee to be harassed, rather than on the third party to commit acts of harassment.
An amended definition of discrimination on grounds of pregnancy or maternity leave
The new legislation simplifies the position in respect of pregnancy or maternity leave discrimination by removing the need for women who are pregnant or on maternity leave to identify a comparator, since the position of a woman who is pregnant or on maternity leave cannot be directly compared with that of a man.
This means that a claim of discrimination need only show that a woman has been treated less favourably on grounds of pregnancy or maternity leave without reference to how she would have been treated had she not been pregnant or had she not exercised a right to maternity leave.
What these changes mean for employers
These changes clarify and simplify a number of technical aspects of the sex discrimination legislation.
However, we would recommend that employers, in taking a practical view of the changes, see them as a reminder that all allegations of sex discrimination and sexual harassment need to be taken seriously, irrespective of whether they fit within what an employer would normally think of as a discrimination or harassment situation, including:
* any complaints of harassment by clients, suppliers or other outside contacts of the organisation;
* a situation where the person who is allegedly being harassed does not have a problem with the conduct, but another employee does.
Employers should also be aware that even if a complaint of sexual harassment or discrimination is not well founded, the fact that the employee has made the complaint may constitute a protected disclosure. Employers should therefore be clear as to the reasoning behind any further decision made in respect of that employee’s employment (eg. in terms of bonus or continuation of employment) so as to avoid any argument by the employee that the future decision is connected with the employee having made a sexual harassment or discrimination complaint.