23 September 2019 - Article
With effect from 6 April 2008, the Sex Discrimination Act 1975 (‘the SDA') was amended in three important respects, bringing UK sex discrimination legislation in line with the 2002 EC Equal Treatment Directive. The SDA (Amendment) Regulations 2008:
- re-define sex-related harassment;
- impose liability on employers for sexual or sex-related harassment by third parties; and
- give improved rights to women whose expected week of childbirth (‘EWC') begins on or after 5 October 2008.
Sex-related harassment – new definition
Prior to 6 April 2008, protection against sex-related harassment did not extend to anyone other than the complainant. The complainant had to demonstrate that the harasser had engaged in unwanted conduct that either violated her dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for her. She also had to show that any unwanted conduct was ‘on the ground of her sex', and not the sex of another person, for example, a co-worker. Under the new Regulations, harassment will occur if the unwanted conduct is ‘related to [the complainant's] sex or that of another person'.
Therefore, for example, banter and jokes in the workplace of a sex-based nature, not directed at the complainant specifically, but which he or she finds degrading would now be considered sex-related harassment.
Further, now the conduct only has to be ‘related to' sex, as opposed to ‘on grounds of sex', thereby widening the scope of what could be considered sex-related harassment. It would now be possible, for example, for a female employee to complain if her female colleagues were creating a hostile environment by discussing her male colleagues in negative, stereotypical terms.
Harassment by third parties
An employer will be potentially liable for sexual or sex-related harassment of their employees by contractors, clients and other third parties, where such harassment takes place in the course of the employee's employment. The employer will have a defence to such claims provided it has not failed to take such steps as would have been reasonably practicable to prevent the third party from harassing the employee. The employer must also know that the complainant has been subject to harassment in the course of her employment on at least two other occasions by a third party (whether or not that third party is the same or a different person on each occasion).
Guidance for employers
Harassment was already a difficult area of law for employers; these new provisions make it even harder. In the case of harassment by third parties, one can envisage difficult situations arising where employers have to have awkward conversations with ‘offending' clients about allegations of harassment, in order to head off possible harassment claims. On a practical note, employers could put up prominent notices, visible to clients, displaying the firm's harassment policy, making it clear that harassment by clients etc. is not tolerated. Employers should also review and update their harassment policies, ensuring they have necessary procedures and safeguards in place to protect employees. This could include details of how employees should report any circumstances of harassment (whether that harassment is directed against themselves or a third party), a confidential help line and details of diversity training offered.
Maternity leave – additional rights
Two new provisions will apply to women whose EWC begins on or after 5 October 2008.
- Currently, only during ordinary maternity leave is a woman entitled to the benefit of all the terms and conditions of employment that would have applied to her if she had not been absent from work, except terms relating to remuneration (ie wages and salary), but covering terms such as pension, holiday, gym membership and provision of a company car. For women whose EWC begins on or after 5 October 2008, these rights will be extended to any period of additional maternity leave.
- Under current law, time spent on compulsory maternity leave (the 2 weeks immediately following childbirth) has to be taken into account when calculating a contractual bonus. This will extend to non-contractual bonuses as well.