Articles

How will new regulations affect your business?

The Sex Discrimination Act 1975 (Amendment) Regulations 2008 came into force on 6 April 2008. It made a number of changes to both the rights of employees who are pregnant or on maternity leave, and the law on harassment. So how will the changes affect employers?

I. Rights during maternity leave

All employees who are pregnant and comply with the statutory notification conditions are entitled to 26 weeks’ ordinary maternity leave, regardless of length of service. Additional maternity leave follows immediately after the end of ordinary maternity leave and lasts for a further 26 weeks, giving pregnant mothers a total entitlement of 52 weeks’ statutory maternity leave.

Question

What changes does the new legislation make to mothers’ rights?

Answer

The change likely to have the most direct effect on employers is the new right for women on additional maternity leave to the same terms and conditions as they enjoy during ordinary maternity leave. Women on ordinary leave are entitled to continue to benefit from all the normal terms and conditions of their contract, except remuneration (other than maternity pay). Previously, a woman on additional leave only benefited from a much more limited range of terms.

The new legislation means that there will be no distinction between the two periods of leave for the purposes of the relevant terms and conditions. In practice, this means (among other things) that a woman on additional maternity leave will continue to accrue contractual holiday and will be entitled to benefits during this period in the same way as during ordinary maternity leave. In fact, the only distinction that will remain is the difference in the right to return to work and the application of statutory maternity pay (which is currently not paid for the last three months of additional maternity leave).

Question

Which new mothers will benefit from these extended rights?

Answer

To allow employers to prepare for the change (which will include reviewing and, where necessary, amending their policies), these extended maternity rights will apply only to women whose expected week of childbirth falls on or after 5 October 2008.

Question

Will employers need to amend their maternity policies as a result of the new legislation?

Answer

Most employers’ maternity policies will make a distinction between the terms and conditions that apply during the two types of maternity leave. For example, they may state that only statutory holiday will accrue during additional maternity leave and that certain service-related benefits will only apply during the paid period of maternity leave (currently 39 weeks, unless the employer has more generous contractual maternity pay provisions). Unless an employer already treats a woman’s entitlements under her contract in the same way throughout her full period of maternity leave, any maternity policy will need to be changed to reflect the new law. Employers will have to review their current policies (whether they are contained in staff handbooks or are separate) in good time before October 2008 to ensure that they comply with the new rules.

Question

Are employers obliged to pay contractual bonuses to women on maternity leave?

Answer

Where a woman has taken maternity leave for part of the period to which a contractual bonus payment relates, an employer is entitled to reduce her bonus pro-rata to take account of the time she has been absent. However, for women whose babies are due on or after 5 October 2008, the twoweek period following childbirth (known as “compulsory maternity leave”) must be treated as time worked for these purposes.

II. Harassment

The revised legislation also makes changes in the area of harassment.

Question

Can employees claim harassment if they are not the primary target of the conduct in question?

Answer

Imagine a male manager calls a female employee (Annie) an airhead. Two colleagues of Annie (Betty and Bill) witness this unwanted conduct. Betty considers that her dignity has been violated by the conduct she has witnessed, and Bill considers that such conduct creates an intimidating, hostile, degrading, humiliating or offensive environment.

Before the new legislation came into force, only Annie, as the primary target of the conduct would be able to claim harassment against the manager. Now, Betty would also theoretically be able to claim harassment. Furthermore, as a witness in such a scenario no longer has to be of the same sex as the primary recipient, so would Bill.

Question

Can employees claim harassment against employers for acts of third parties?

Answer

Previously, under case law, an employer would be liable if it could reasonably have prevented the harassment in question (and the employer did not necessarily have to know of any previous acts of harassment).

Now, an employer will only be liable if:

1. The third party harasses the woman while she is working/ at work; and
2. The employer has failed to take reasonably practicable steps to prevent the harassment; and
3. The employer knows that the woman has been harassed during her employment on at least two other occasions by the third party

The third part of this test give employers much more leeway: any new “victim” of harassment cannot claim until she herself has been harassed - and reported it - three times.

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