Changes to the Sex Discrimination Act 1975

The Equal Opportunities Commission (EOC) was successful in its judicial review proceedings against the Government over the implementation of the Equal Treatment Directive through the Employment Equality (Sex Discrimination) Regulations 2005, which came into force on 1 October 2005 and amended the Sex Discrimination Act 1975. The High Court found that the Regulations did not adequately implement the revised Equal Treatment Directive, meaning that the Government was obliged to make appropriate amendments to the Act. It is doing this through the Sex Discrimination Act 1975 (Amendment) Regulations 2008. The initial indication was that amendment Regulations would come into force on 1 October 2007. However, they were not laid before Parliament until 14 March 2008, and will come into force on 6 April 2008.

Regulation 2 amends the definition of discrimination on grounds of pregnancy or maternity leave to eliminate the requirement for a comparator who is not pregnant or on maternity leave.

At present, section 4A(1)(a) of the Sex Discrimination Act 1975 states that a person subjects a woman to harassment if 'on the ground of her sex, he engages in unwanted conduct that' has the purpose or effect of violating her dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The amendment Regulations change the words in inverted commas to 'he engages in unwanted conduct that is related to her sex or that of another person and'. The result is that a claimant is required to show only that the alleged harassment was connected to sex, and not that it took place because of her sex.

A new section 6(2B) provides that an employer will be treated as subjecting a woman to harassment where a third party subjects her to harassment in the course of her employment and the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. This does not apply unless the employer knows that the woman has been subject to harassment in the course of her employment on at least two other occasions by a third party, whether or not it is the same third party on each occasion.

Section 6A of the Act sets out exceptions to the right to claim discrimination in relation to terms and conditions during maternity leave, and these are narrowed by regulation 5 in relation to women with an expected week of childbirth beginning on or after 5 October 2008. The amendments mean that a woman on maternity leave will be able to bring a claim in relation to non-payment of a bonus in respect of a period when she is on compulsory maternity leave. In addition, claims for discrimination in relation to terms and conditions of employment during periods of additional leave will be enabled to the same extent as claims in relation to terms and conditions during periods of ordinary maternity leave. This represents a significant extension to employees' maternity rights. The Maternity and Parental Leave etc Regulations will be amended in due course to reflect this.

HR & Compliance Centre guidance

Historical context

  • SDA amendments: an EOR guide A summary of the key changes introduced by the Employment Equality (Sex Discrimination) Regulations 2005 in October 2005.