Last year the High Court found that the sexual harassment provisions under UK sex discrimination legislation set out in the Sex Discrimination Act 1975 (SDA), did not comply with European Directives. As a result the legislation was amended on 6 April 2008 and we consider how the law is now settling down in this area and the consequences of other changes under the legislation.

The New Regulations

In line with the EU Directive and the High Court's ruling, the 2008 Regulations:

  • introduce a revised definition of sex-related harassment;
  • impose liability on institutions (and other employers) for sexual harassment where they knowingly fail to protect an employee from repeated harassment by third parties (such as students, customers and other commercial contacts);
  • extend the right of protection from pregnancy/maternity related discrimination; and
  • for women whose expected week of childbirth begins on or after 5 October 2008, improve rights during compulsory and additional maternity leave, including removing the distinction between ordinary and additional maternity leave in respect of entitlement to non-pay benefits.

A new definition of sexual harassment – what will this mean?

The new definition eliminated the causal link between harassment and the sex of the person being harassed and is intended to cover a wide range of conduct. As a result, a person complaining of harassment under the SDA will only be required to show that the alleged treatment was connected or associated with sex and not that it took place because the complainant was a woman or man. Individuals who are not directly subjected to the unwanted conduct themselves will also receive protection e.g where someone working in an environment where sexist banter is commonplace and which, although not directed at that person or caused by their presence, creates an offensive environment for them.

Harassment by third parties

Even more significant, will be the added potential liability of institutions in the face of employee harassment by third parties, such as customers or students. An institution will now be liable for sex discrimination when a third party subjects an employee to sex-related or sexual harassment, but only if the institution has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. This provision only applies if the institution knows that the complainant has been subject to harassment in the course of employment on at least two other occasions by a third party (though it is immaterial whether the third party is the same or a different person on each occasion).

Simplified pregnancy/maternity-related discrimination

Since 6 April 2008 the SDA has been amended to eliminate the requirement of a comparator in cases of alleged pregnancy or maternity discrimination. A woman will instead have to show only that she has been treated less favourably on the ground of her pregnancy or the fact that she has taken, or sought to take, statutory maternity leave. This builds on case law and our experience since April shows litigation in this complex area is on the increase.

Ordinary/additional maternity leave distinction removed

The 2008 Regulations have also amended the SDA by removing the distinction between ordinary and additional maternity leave. This means that the same benefits are given during additional maternity leave (the second 26 weeks) as in ordinary maternity leave (the first 26 weeks) except for the terms providing for remuneration (that is, wages or salary). These are significant changes that will mean that during both ordinary and additional maternity leave an employee will benefit from the terms and conditions that would have applied to her had she been at work. Therefore, contractual benefits such as annual leave, pensions and so on will continue during additional maternity leave as well as ordinary maternity leave. These changes will apply to employees whose expected week of childbirth begins on or after 5 October 2008.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.