Issue 102 - May 2008

Sex Discrimination Act 1995 (amendment) Regulations 2008 (“the Regulations”)
The Regulations came into force on 6 April this year following a finding by the High Court that the UK’s sex discrimination legislation did not comply with European requirements.

What changes have been made?

In brief, the Regulations contain:

• an amended definition of harassment;
• new liability for employers who fail to protect an employee from third party harassment;
• an amended definition of discrimination on the grounds of pregnancy or maternity; and
• for women whose expected week of childbirth begins on or after 5 October 2008, improved 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.

Harassment

The current position is that where unwelcome conduct is connected with an individual’s sex, it is only unlawful if the perpetrator engaged in that conduct because of the complainant’s sex. The new definition is much broader and will apply to unwanted conduct "related to the complainant’s sex or that of another person". For example, an individual could bring a complaint if he or she has been offended by sexist remarks made about another person.

Please note that this change of definition relates to sexrelated harassment. This is different from sexual harassment which is harassment of a sexual nature and is outlawed regardless of whether it is directed at the complainant.

Employer Liability

The Regulations have confirmed that an employer can now be liable for sex discrimination if a third party subjects an employee to sex-related or sexual harassment, but only if that employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. Further, the provision will only apply if the employer knows that the complainant has been subjected to harassment in the course of employment on at least two other occasions by a third party.

Interestingly, employees appear to be less protected under the Regulations than under previous case law. Case law suggested that an employer could be liable for third party harassment if that employer could have reasonably prevented that harassment. The Regulations however have introduced this “three strike” rule where the victim will have no remedy until they themselves have been harassed three times.

Definition of discrimination on the grounds of pregnancy or maternity

The Regulations confirm the well established case law that there is no need for a comparator in cases of alleged pregnancy or maternity discrimination. A woman will only have to show that she has been treated less favourably on the grounds of her pregnancy or the fact that she has taken, or sought to take, statutory maternity leave.

Ordinary/additional maternity leave distinction removed

Finally, the Regulations have removed the distinction between ordinary maternity leave (OML) and additional maternity leave (AML). This means that the same benefits should be afforded during AML as in OML. Therefore, contractual benefits such as annual leave, pensions, insurance etc will continue during AML as well as OML. Please note that this will only apply to women whose expected week of confinement (the week they are due to give birth) starts on or after 5 October 2008.

Liability for an employee’s suicide
In Corr v IBC Vehicles Limited the House of Lords held that suicide was a directly foreseeable result of an injury at work. Mr Corr suffered a serious accident at work in 1996 in which he was nearly decapitated. He underwent reconstructive surgery but was left disfigured. He also suffered from mild tinnitus, severe headaches, post traumatic stress disorder and depression. Six years later he committed suicide and the employer was held liable under the Fatal Accidents Act 1996 as they owed Mr Corr a duty or care to avoid causing him psychological and physical injuries and it was reasonably foreseeable that his psychological injuries (and hence the suicide) could arise from the injuries sustained.

Quick Fire

• No more fixed conciliation periods
  The Employment Tribunal’s Rules of Procedure currently set out various periods of time for which ACAS Conciliation Officers are under a duty to seek to promote a settlement, depending on the type of claim. While ACAS has discretion to extend these conciliation periods, it rarely does so. However ACAS has recently confirmed that it will now exercise its discretion to extend the conciliation period in all cases.
• Baldness is not a disability
  A Scottish Tribunal has very sensibly ruled that baldness is not a disability, following a claim brought by a teacher arguing that he was harassed by his pupils by being called “baldy”!
  
  Not surprisingly, the Tribunal in Glasgow decided that being bald could not be regarded as an “impairment” and therefore his claim failed.

Upcoming Events

• Birketts LLP will be hosting two Mock Tribunals in conjunction with 12 King’s Bench Walk Barristers, the University of Essex and the University of East Anglia. The first Mock Tribunal will be held at the UEA in Norwich on the Thursday 15th May 2008, with the second to be held in Colchester (date to be confirmed).

If you wish to attend any of these events please contact Victoria Cole on 01603 756438.

The content of this document is for general information only. As always, specific professional advice should be taken on each individual matter © Birketts LLP 2008. Solicitors regulated by the Solicitors Regulation Authority. Birketts LLP is constituted as a limited liability partnership in accordance with the Limited Liability Partnerships Act 2000.

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