TOPICAL BRIEFING
Changes to the Sex Discrimination Act: April 2008 and October 2008.
DEFINITION OF HARRASSMENT
A new definition for harassment from April removes the causal link between harassment and the sex of the person being harassed. A person that complains of harassment will only be required to show that the alleged treatment was connected or associated with sex, not that it took place because the complainant was of a particular sex. For example, an employee could make general sexist remarks not aimed specifically at the individual who nevertheless found the remarks harassing.
Claims may also be made by someone who is not subject to the unwanted conduct him or herself, but the effect of which nevertheless violates his or her dignity or creates an intimidating environment. So, it could be close work friend who complains.
HARASSMENT BY THIRD PARTIES
An employer will now be liable for sex discrimination where a third party subjects an employee to sex related or sexual harassment, if they have failed to take reasonably practical steps to prevent the third party from doing so if the employer knew or should have known that the complainant had been subject to harassment in the course of employment on at least two previous occasions.
DISCRIMINATION ON GROUNDS OF PREGNANCY OR MATERNITY LEAVE
The amended definition eliminates the requirement of a comparator who is not pregnant or on maternity leave. Now 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.
TERMS AND CONDITIONS OF EMPLOYMENT DURING MATERNITY LEAVE
Where the expected week of childbirth begins on or after 5 October 2008, the new Regulations have amended the Sex Discrimination Act by removing the distinction between ordinary and additional maternity leave. This means that a woman may have a claim if she is not given the same (non-remuneration) benefits during additional maternity leave as she has during ordinary maternity leave. Private use of a company car, mobile phone, annual leave etc will now apply during additional maternity leave period. Previously, these benefits only needed to be granted during the ordinary leave period of 26 weeks. Check your practices now.
THE ASYLUM AND IMMIGRATION REGULATIONS JUST CHANGED: MARCH 2008
Did you realise you must perform a documentation check on every single new employee, otherwise you could face a substantial fine if you were to inadvertently employee an illegal immigrant? You must do this check on all employees- not just those you believe might be immigrants. The documentation requirements have changed slightly and you need to update the information you should already have been sending out with all offers of employment.
RELEASING STAFF ON REDUNDANCY: MARCH 2008
When companies make more than 20 staff redundant most are aware that they have to comply with the collective redundancies consultation process. However, you may not have realised that if you are making fewer than this number redundant, then you now need to treat those employees the same way as if they were being dismissed for misconduct! You must go through what is known as a ”three step process” otherwise you will be at risk of a finding of unfair dismissal against you. The Dispute Resolution Regulations (as they are known) have tripped many an employer up since they were introduced in October, 2004. Don’t be one of them!