Changes to the Sex Discrimination Act

In 2007, the former Equal Opportunities Commission brought judicial review proceedings against the Government regarding some of the provisions of the Employment Equality (Sex Discrimination) Regulations 2005, which made amendments to the Sex Discrimination Act 1975 (SDA) in order to implement the Equal Treatment (Amendment) Directive. The Court judged that the Regulations did not fully implement the Directive and so the Government was required to make amendments to the SDA with regard to pregnancy and maternity leave, discrimination and harassment.

The Sex Discrimination Act 1975 (Amendment) Regulations 2008, which made these changes to the SDA, came into force on 6 April 2008.

Specifically, the definition of sexual harassment was expanded to include unwanted conduct that is ‘related to her sex or that of another person’. The change enables a claim to be made by someone who is not the subject of the unwanted conduct but where its effect is to violate that person’s dignity or to create an intimidating environment for them.

As regards an employer’s liability for the harassment of employees by a third party, it is now unlawful for an employer to fail to take reasonably practicable steps to protect an employee from harassment by a third party where such harassment is known to have occurred on at least two other occasions. The person responsible for the harassment does not have to be the same on each occasion.

Changes made with regard to pregnancy and maternity were the removal of the requirement for a comparator who is not pregnant or not on maternity leave, when a woman brings a claim for discrimination on these grounds, and there must also be no difference between the contractual benefits allowed to women who are on compulsory, ordinary or additional maternity leave.