Views
3 years ago

Summer 2008 - Mills & Reeve

Summer 2008 - Mills & Reeve

Putting the

Putting the SexDiscrimination Act rightGillie Scoular and Amanda Brownlook at the recent efforts to makethe Sex Discrimination ActEuro-compliant.Gillie Scoular01603 693265gillie.scoular@mills-reeve.comAmanda Brown01603 693297amanda.brown@mills-reeve.comStating the problemThe Sex Discrimination Act 1975 (SDA), likemuch of Britain’s discrimination law, is arguablylong past its sell-by date. It has been shownup by more up-to-date legislation in otherdiscrimination strands like age and religion,and has also struggled to keep up with thechanging pace of EU legislation and case law.It was last given a comprehensive overhaul in2005, when its employment provisions wereextensively amended to bring it in line withrevisions to the Equal Treatment Directive.These changes included inserting a freestandingdefinition of harassment andincluding provisions dealing specifically withdiscrimination on grounds of pregnancy ormaternity leave.The Equal Opportunities Commissionconsidered these changes did not go farenough and, when the Government failed totake its views into account, launched judicialreview proceedings that were decided in itsfavour in March 2007. As a result, theGovernment brought forward another raft ofamendments, which for the most part tookeffect in April 2008.Sorting out harassmentThe original 2005 definition of harassment wassignificantly narrower than its counterpart inthe directive, in that it required a causal linkbetween the harasser and the sex of thevictim. This has been put right and thedefinition is now satisfied if the harassment issexually-related, even if it is not “on thegrounds” of the victim’s sex. The importance ofthis distinction is illustrated by a recent decisionunder the Sexual Orientation Regulations,which still adopt the old-style harassmentdefinition. In that case the victim was subjectedto homophobic abuse but was deprived of aremedy because his harassers did not believehim to be gay (he was not).There was also another problem with thedefinition: it did not deal with the possibilitythat employers could be liable for harassmentof their staff from customers and otherthird parties. It is arguable that both theoriginal and re-modelled definition cateredfor this possibility, but the route to such aninterpretation was blocked a few years agoby the House of Lords, which ruled that aschool was not liable under the SDA forhomophobic abuse of a teacher by its pupils.The new definition now provides that, inappropriate circumstances, an employer can beliable for third-party harassment. It incorporatesa “three strikes” rule that does not have acounterpart in any other domestic (orEuropean) discrimination legislation. The basicidea is that an employer will be liable if itknows about it, it has occurred on at leasttwo previous occasions (though theperpetrator need not be the same each time)and the employer has not taken reasonablesteps to prevent it.Protecting terms duringmaternity leaveAnother troublesome area concerns thetreatment of women on maternity leave. It isclear that a woman does not need to receiveher normal pay during statutory maternityleave, but under the old SDA there was adistinction between ordinary maternity leave(OML) and additional maternity leave (AML) inrelation to other terms and conditions. Underthe old SDA, it was only during OML that awoman retained the benefit of all her termsand conditions (except those “relating toremuneration”).Under amendments that will take effect forwomen whose babies are expected from 5October onwards, this distinction has beenabolished. Quite what it will mean in practice isunclear until the definition of remuneration forthese purposes is clarified. But employers willhave to make some adjustments. One obviousexample is the need to remove a provisioncommonly found in contracts of employmentthat prevents accrual of contractual holidayentitlement during AML.5

Covernote - Summer 2008 - Mills & Reeve
Covernote - Spring 2008 - Mills & Reeve
Family Matters - Summer 2009 - Mills & Reeve
Employment Post Autumn 2008 - Mills & Reeve
Charities and public benefit - February 2008 - Mills & Reeve
Hot Property Autumn 2008 - Mills & Reeve
Family Matters - Spring 2008 - Mills & Reeve
Family Matters - Autumn 2008 - Mills & Reeve
Public Eye - Spring 2008 - Mills & Reeve
Farm Water Bulletin - Autumn 2008 - Mills & Reeve
Capital gains tax changes - February 2008 - Mills & Reeve
graduate brochure - Mills & Reeve
graduate brochure - Mills & Reeve
Covernote - Winter 2009 - Mills & Reeve
Covernote - Winter 2007 - Mills & Reeve
Employee share incentives - Mills & Reeve
Covernote - Issue 1 2010 - Mills & Reeve
Employment Post Spring 2009 - Mills & Reeve
Hot Property Winter 2007 - Mills & Reeve
Building Blocks Edition 3 2004 - Mills & Reeve
Hot Property - Spring 2009 - Mills & Reeve
Employment Post August 2007 - Mills & Reeve
Reeves Farmhouse Study Summer 2011 - Arlington County
Mill Theatre Summer Programme 2015_0