A number of legislative amendments were brought into force on 1 October 2004 but perhaps the most publicised among these were the changes to the Sex Discrimination Act 1975 and the Equal Pay Act 1970 brought into effect by the Employment Equality (Sex Discrimination) Regulations 2005 (the "Regulations") to implement the amended Equal Treatment Directive.
The main changes include: a new definition of indirect sex discrimination; a new definition of harassment; clarification that less favourable treatment of women on grounds of pregnancy or maternity leave is unlawful sex discrimination; the introduction of an eight week time limit for responding to a sex discrimination questionnaire and the extension of protection to those who work overseas for British employers.
The Regulations clarify that the following are expressly prohibited: harassment on the grounds of the complainant's sex, sexual harassment and harassment on the grounds of gender reassignment. It is also unlawful to treat a person unfavourably because he or she has either rejected or submitted to the harassment.
In assessing the practical effect of this aspect of the new rules, the Women and Equality Unit state in their guidance booklet that because harassment is already unlawful the Regulations should not require a change for employers to their management practices. However, the new rules remove a significant hurdle that claimants have faced in the past when bringing a harassment claim where there is no available comparator.
Previously, a woman claiming harassment, whether on the grounds of sex or sexual in nature, had to bring her claim within the existing law for direct sex discrimination, necessitating proof that the claimant was treated less favourably than a man would have been in a comparable situation. The obvious failing of the previous law was that the employer had a defence where the comments complained of where made to both men and women. In Brumfitt v Ministry of Defence and another, the claimant's male supervisor made obscene comments to both male and female attendees on his training course. However, the EAT dismissed the claim because the comments were made to both male and female employees and therefore the claimant's sex had not been the reason for the treatment.
Now, harassment on the grounds of the complainant's sex and sexual harassment are freestanding claims under the Sex Discrimination Act 1975 removing the need for the claimant to prove less favourable treatment than a comparator of the opposite sex. It might be fair to assume that the tribunals and courts will be faced in the coming year with a number of harassment claims that claimants would not have been able to bring under the previous law. It is therefore important that employers take this opportunity to review their policies on inappropriate behaviour and tighten controls where necessary.
Critics of the new rules are sceptical whether the Brumfitt case would be decided any differently and have questioned whether the wording in the Regulations still requires a comparator for claims of harassment on the grounds of sex. Their reasoning is that the only way to demonstrate that harassment is "on the ground of sex" is to show that a comparator in the opposite sex would not have been treated in the same way. The Government has sought to allay these fears by stating that a comparator is not required to prove harassment on the grounds of sex. However, it remains to be seen whether the Courts will follow the Government's advice and implement the true intention of the Equal Treatment Directive.