Sex Discrimination Act 1975 (Amendment) Regulations 2008 – bringing UK employment law in line with the EU directives

In March 2007, the Equal Opportunities Commission successfully challenged the Employment Equality (Sex Discrimination) Regulations 2005 (the Equality Regulations) in the High Court that the Equality Regulations did not implement the EC Equal Treatment Directive (2002/73/EC) adequately in the UK. The failings related to harassment, maternity leave and discrimination on the grounds of pregnancy.

As a result of that decision, the relevant legislation has now been amended and the Sex Discrimination Act 1975 (Amendment) Regulations 2008 (the Amendment Regulations) came into force on 6 April 2008.

The Amendment Regulations make three major changes to the Sex Discrimination Act:

·         The definition of sexual harassment has been widened so that an employee may be able to bring a claim even if the harassment was not aimed at them. This new definition removes any issues of causation.

·         Employers can now be liable for sexual harassment committed by a third party (for example, a client or a supplier).

·         The definition of discrimination on grounds of pregnancy or maternity no longer requires a comparison with the treatment the employee would have received if she had not been pregnant or on maternity leave.

A further change introduced by the Amendment Regulations is to remove the distinction between additional maternity leave (AML) and ordinary maternity leave (OML). Current UK law on sex discrimination preserves all benefits during OML, but not during AML. Women will now be protected from less favourable treatment as a result of being on AML. This means that the benefits available under AML must remain the same as those available under OML.

The practical effects of these amendments are to increase the circumstances in which an employer could be held liable for the harassment and discrimination of its employees.