Equal Opportunities

Sex Discrimination Act Changes, October 2005

As a result of the changes to the European Union Equality Laws the Government has made changes to the Sex Discrimination Act (SDA) with effect from 1 October 2005.

Many of the changes are legally complex and the actual effect will not be clear until some cases are heard by the Tribunals and Courts but three changes do need highlighting.

Harassment

Previously sexual harassment was potentially unlawful as detrimental discrimination based on sex. For cases of harassment after October 1st 2005 the SDA actually now specifically covers harassment both "sexual harassment and sex-based harassment". The amendments to the Sex Discrimination Act will expressly prohibit both forms of harassment. The Regulations amending the SDA are worded as follows:

1. For the purposes of this Act, a person subjects a woman to harassment if –
1. on the ground of her sex, he engages in unwanted conduct that has the purpose or effect –
1. of violating her dignity, or
2. of creating an intimidating, hostile, degrading, humiliating or offensive environment for her
2. he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect –
1. of violating her dignity, or
2. of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or
3. on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct.
2. Conduct shall be regarded as having the effect mentioned in sub-paragraph (i) or (ii) of subsection (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect.

The SDA makes it clear that the gender specific use of terms like 'he' and 'she' or 'him' and 'her' also encompasses the opposite sex of the term used.

We have criticised the government's proposals for a definition of "harassment" and "sexual harassment", suggesting that the language used may not meet the Directive's aim of ensuring that victims were not subjected to unwanted conduct, with the emphasis on the perception of the victim.

However, in relation to the difference in types of harassment, the Government describes "harassment" as "unwanted conduct related to a person's sex that is not 'of a sexual nature'". Sexual harassment, by contrast, is described as "unwanted conduct not necessarily related to a person's sex but is 'of a sexual nature'". We hope that all cases of sexual harassment will be covered. At this time the Equal Opportunities Commission have not changed their advice in their Code of Practice.

Indirect Discrimination in Employment and Vocation Training

Indirect Discrimination will now be defined as to whether a provision, criterion or practice "puts or would put women at a particular disadvantage when compared with men". The Government explanation of this is: "This provision recognises that it is not always possible or necessary to use detailed statistical calculations to show particular disadvantage. However, employment tribunals will still need to consider whether a provision, criterion or practice causes disadvantage to a particular group of people and to the individual complainant. Statistics could be helpful in establishing evidence of particular disadvantage; however, such evidence could also come from experts or other witnesses."

Indirect Discrimination, unlike Direct, can be justified and the justification criteria have been changed so that the burden is on the employer to show that the provision, criterion or practice is "a proportionate means of achieving a legitimate aim". The CWU, the Equal Opportunities Commission (EOC) and the TUC raised the argument that this test is weaker than that set out in the Directive, which requires the employer to show that the means of achieving the aim are "appropriate and necessary", rather than "proportionate". The government rejected our submission.

Pregnancy Discrimination

Before 1 October 2005 the SDA had not set out explicitly that unfavourable treatment on grounds of pregnancy or maternity leave is unlawful – this has been left to case law. New sections headed "Discrimination on the ground of pregnancy" and "Discrimination on the ground of maternity leave" have now been inserted into the SDA. They make it explicit that women are protected from discrimination on the ground that they are pregnant.

This protection not only applies to employees but also to applicants for employment and people accessing vocational training. The amendments also make it explicit that women are protected from discrimination in relation to their right to maternity leave. This protection applies during both ordinary maternity leave and additional maternity leave, (i.e. both the first 26 weeks and the additional 26 weeks, if taken).

This change does not actually provide for new rights but does make it clearer to, among other people, the employers that pregnant women are protected by sex discrimination legislation.

If a woman wishes to claim that she has been subject to discrimination on the ground that she was pregnant under the SDA or the Employment Protection Act (EPA), she does not need to compare her treatment to that of a male because it is not possible to find a male in comparable circumstances (i.e. a male who was pregnant). Discrimination related to taking maternity leave can also occur without a male comparator because it is not possible to find a male in comparable circumstances, (i.e. a male having exercised a right to maternity leave). So, for example, a woman would not need a male comparator if she was claiming that she was not being given access to vocational training because she had suffered from a pregnancy-related illness or in a case where whilst on maternity leave she had not received a pay rise to which she would have been entitled if she were at work.

The special protection for pregnancy-related discrimination ends when a woman's right to statutory leave ends. At that point, she would have to compare her unfavourable treatment with the treatment of a real or hypothetical man in similar circumstances.

Other Changes

A number of other changes were made to the SDA. Some changes were made with effect from 1 October 2005, whilst others are due to be implemented in future.