OFMDFM information note on changes to Sex Discrimination Regulations 2008

A1. Harassment is unacceptable in society generally and everyone should be able to go about his or her work in an environment free from harassment.  Case law has long established that sex harassment and sexual harassment can be a detriment and constitute sex discrimination under the Sex Discrimination (Northern Ireland) Order 1976 S.I. 1976/1042 (N.I. 15) (SDO).  

A2. To implement the Equal Treatment Amendment Directive, we amended the SDO through Regulations S.R. 2005 No. 426 – The Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005 from 5 October 2005 to expressly prohibit sex harassment, sexual harassment and gender reassignment harassment.  Sex harassment, sexual harassment and gender reassignment harassment are unlawful if they have the purpose or effect of violating the complainant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.  

A3. The difference between sex harassment and sexual harassment is that sex harassment occurs when a person generally behaves in an offensive way to another related to gender (such as male manager referring to a female colleague as a ‘bimbo’).  By contrast, sexual harassment occurs where a person subjects another to unwanted attention of a sexual nature (for example pinching a colleague's bottom or making lewd comments).

A4. Following a judicial review Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] EWHC 483 (Admin) brought by the former Equal Opportunities Commission against Great Britain’s Employment Equality (Sex Discrimination) Regulations 2005 S.I. 2005/2467, the High Court found that those Regulations (which amended the Sex Discrimination Act 1975) did not adequately provide the protections required by the Equal Treatment Amendment Directive and European case law.  The court ruling set out the changes that it considered necessary for the relevant provisions of the Sex Discrimination Act 1975 to fully comply with the European law.

A5. The High Court ruling made it necessary for Northern Ireland to make corresponding amendments to its analogous sex discrimination legislation - the SDO.  In respect of harassment, the decision has required us to recast the relevant provisions of the SDO to:

(a) eliminate the issue of causation in the definition of “sex harassment” which results from the formulation “on the ground of”;

(b) facilitate claims of sex harassment by witnesses - whatever their sex; and

(c) provide for employer liability for harassment where the employer fails to take reasonably practicable steps to prevent repeated harassment of an employee by third parties such as clients and customers where the employer is aware of such conduct.

A6. Harassment under the SDO can include unintentional behaviour, but in such cases the behaviour will only have the effect of constituting harassment where having regard to all the circumstances, including in particular, the perception of the complainant, it should be reasonably considered as having that effect.

What the law says from 6 April 2008

A7. The amendment made to Article 6A(1)(a) of the SDO by regulation 3 of the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2008 S.R. 2008 No. 159 (“the 2008 Regulations”) gives effect to the changes outlined in paragraphs A5(a) and A5(b) above.  The new paragraphs (2B) to (2D) inserted into Article 8 of the SDO by regulation 4 of the 2008 Regulations gives effect to change outlined in paragraph A5(c) above.  

A8. There is no change to the definitions of sexual harassment or gender reassignment harassment that were introduced into the SDO in October 2005.  

A9. To eliminate the issue of causation in the definition of sex harassment in Article 6A(1)(a) of the SDO, regulation 3 of the 2008 Regulations replaces the phrase “on the ground of” with the language of the Directive itself, which uses the phrase “related to”.  When implementing the Directive, it was Government’s view that there was no material difference between the two formulations.  However, in the view of the High Court the phrase “on the ground of” required the conduct to be motivated by the victim’s sex whereas the phrase “related to” is associative, and can therefore cover a wider range of conduct.   

A10. For example, where male colleagues dislike a female colleague and decide to put office equipment on a high shelf to make it hard for her to reach, the former definition may not apply (because the men are acting out of dislike of the woman and not because she is a woman) but the new definition may apply because the conduct of putting equipment on a high shelf relates to sex because woman are, on average, shorter than men.  Another example might be where a male manager follows a woman into the ladies toilets, which could be conduct relating to sex but might not be conduct on grounds of sex (if, for example, the reason for the manager following the employee into the toilet was to shout at her).

A11. The old definition of sex harassment referred to conduct on the ‘ground of her sex’ (‘her’ also includes ‘his’).  The Court’s view was that on a straightforward reading of the definition it did not facilitate claims for witnesses of sex harassment – including witnesses of the opposite sex – who are not the direct recipients of the conduct in question but who feel harassed by the conduct.  

A12. The High Court ruling required Government to facilitate such claims.  Adopting the phrase “related to sex” instead of “on the ground of her sex” will not only eliminate the issue of causation but will facilitate such claims.  An example of this would be where a female manager calls a female employee a floozy or airhead and this is witnessed by a male colleague, who considers that his dignity is violated by this or considers that it creates an intimidating, hostile, degrading, humiliating or offensive environment for him.  

A13. For a successful claim, the witness would, however, have to show that all the elements of the test of harassment have been satisfied in respect of him or her.

A14.When implementing the Directive, it was the UK Government’s view that although there was no express provision imposing liability on employers for harassment of their employees by third parties (such as customers), on appropriate facts, the Sex Discrimination Act 1975 could be interpreted to impose such liability.  For example, where an employer knowingly fails to protect an employee from repetitive third party harassment over which he has some control.  The Court’s view was that, based on current case law, it was difficult to see how the Sex Discrimination Act 1975 could be interpreted in this way.  As the wording of the SDO is the same as the Sex Discrimination Act 1975, a similar interpretation applies to the SDO.

A15.Regulation 4 of the 2008 Regulations amends the SDO to include an explicit test for employer liability where an employer fails to take reasonably practicable steps to prevent repeated harassment of an employee by third parties (such as clients and customers).  To incur liability, the employer must have knowledge of harassment of an employee by one or more third parties on at least two other occasions, and liability will not occur where the employer can show that he took all reasonably practicable steps to prevent further harassment.  This test encapsulates the following considerations.  Employers should not be made liable for:

A16. Employer liability for third-party harassment applies not only to sex harassment but also to sexual harassment and gender reassignment harassment.  An example of where such liability could incur is where an employer knows that every Monday a customer comes into the factory to pick up goods and every time he does so he sexually harasses some members of the female staff.  Although he is aware of such conduct, having witnessed it himself, and complaints have been made about the customer doing this, the employer nevertheless chooses to do nothing about the situation because he doesn’t want to lose the customer.  

B1. It is direct sex discrimination to treat a female worker or job applicant less favourably on the ground of her pregnancy or maternity leave.  Case law, deriving mainly from the provisions of the Pregnant Workers Directive and the Equal Treatment Amendment Directive, has long established that less favourable treatment of a woman on the grounds of pregnancy or maternity leave already constituted unlawful direct sex discrimination.  

B2. To implement the Equal Treatment Amendment Directive, we amended the Sex Discrimination (Northern Ireland) Order 1976 (SDO) through Regulations S. R. 2005 No. 426 – the Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005 from 5 October 2005 to make this clear in primary legislation.  

B3. Following a judicial review Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] EWHC 483 (Admin) brought by the former Equal Opportunities Commission against Great Britain’s Employment Equality (Sex Discrimination) Regulations 2005 S.I. 2005/2467, the High Court found that those Regulations (which amended the Sex Discrimination Act 1975) did not adequately provide the protections required by the Equal Treatment Amendment Directive and European case law.  The court ruling set out the changes that it considered necessary for the relevant provisions of the Sex Discrimination Act 1975 to fully comply with the European law.

B4. The High Court ruling made it necessary for Northern Ireland to make corresponding amendments to its analogous sex discrimination legislation - the SDO.  In respect of discrimination on the ground of pregnancy or maternity leave, the decision has required to recast the relevant provisions of the SDO to:

(a)eliminate from the definition of discrimination on the ground of pregnancy or maternity leave the statutory requirement for a comparator who is not pregnant or who is not on maternity leave; and

(b)permit claims for discrimination on the ground of maternity leave which are permitted under relevant European case law.  

B5.SDO: Article 5A, paragraphs (1) and (2) have been amended by regulation 2 of the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2008 S.R. 2008 No. 159 (“the 2008 Regulations”) to remove the requirement for a comparator who was not pregnant or on maternity leave.  All other protections under Article 5A remain unchanged.

B6.SDO: Article 8A, as substituted by regulation 5 of the 2008 Regulations, narrows the circumstances in which it is not unlawful to deprive a woman on additional maternity leave of the benefit from the terms and conditions of her employment.  This equalises the discrimination claims that can be brought under Article 8 of the SDO in relation to periods of ordinary maternity leave and additional maternity leave.  It also makes it unlawful to deprive a woman of the benefit of the terms and conditions of her employment relating to a discretionary bonus in respect of times when she is on compulsory maternity leave.  

B7. Because pregnancy is a special position requiring special protection and which is not comparable either with that of a man or a woman actually at work, to establish that she has been treated less favourably on the ground of pregnancy, a woman does not need to compare her treatment to that of anyone else – not even with the way she would have been treated if she were not pregnant.  For the same reasons, a claim for discrimination on the ground that a woman is exercising a statutory right to maternity leave can now also be brought without a comparator.   

B8. So for example, a woman whose employer refuses to let her take additional toilet breaks while pregnant may have a claim under the new definition, as might a woman whose job requires heavy-lifting which she cannot perform while pregnant but who is nonetheless required to do so.  Less favourable treatment might arise from denial of any employment rights to which a woman who is pregnant or on maternity leave is entitled.  

B9. These employment rights are governed by the Maternity and Parental Leave etc. Regulations (Northern Ireland) 1999 For advice on the Maternity and Parental Leave etc Regulations (Northern Ireland) 1999

(S.R. 1999 No. 471), contact the Department for Employment and Learning

Note:  It remains the case that it is not a defence that an employer did not intend to discriminate or did so to protect the woman.  For example, if an employer does not offer a pregnant woman the opportunity of travelling because her manager assumes that travelling will be too tiring for her, this is likely to be discriminatory.  

B10. Article 8 of the SDO identifies the circumstances in which it is unlawful for an employer to discriminate against an applicant or employee, such as in access to opportunities for promotion, transfer or training or any other benefits, facilities or services.  Article 8A of the SDO sets out an exception relating to terms and conditions of employment during maternity leave.

B11. The new Article 8A of the SDO, substituted by regulation 5 of the 2008 Regulations, amends this in two ways:

(a)by making it unlawful to deprive a woman of any benefit from the terms and conditions of her employment relating to remuneration by way of a discretionary bonus in respect of times when she is on compulsory maternity leave.  This means a woman may have a sex discrimination claim if any part of the period spent on compulsory maternity leave (that is the period of two weeks immediately following the birth of the child) has not been included, as though she had been at work and working normally, in calculating a discretionary bonus; and

(b)by narrowing the circumstances in which it is not unlawful to deprive a woman on additional maternity leave of the benefit from the terms and conditions of her employment – meaning women on additional maternity leave may be able to seek a remedy under discrimination law if they are not awarded the same non-pay benefits of terms and conditions as when on ordinary maternity leave.  The Maternity and Parental Leave etc. Regulations (Northern Ireland) 1999 govern non-pay benefits employers are obliged to provide.  Examples of other non-pay benefits of terms and conditions might be contractual annual leave above the statutory minimum, company cars, gym membership, mobile telephones and the matter of counting time spent on additional maternity leave towards length of service calculation.

B12. The change outlined at paragraph B11(b) above will have a significant impact on businesses which do not currently provide women on additional maternity leave with the same level of benefits of the terms and conditions of their employment as they provide to them when on ordinary maternity leave.  

B13. Regulation 5 of the 2008 Regulations will apply to women whose expected week of childbirth begins on or after 5 October 2008. This later application date will provide business with time to plan for this change.

B14. In addition, the Maternity and Parental Leave etc. Regulations (Northern Ireland) 1999 are also to be amended in order to remove the distinction between ordinary and additional maternity leave in respect of entitlement to non-pay contractual benefits of terms and conditions of employment.  These amendments are planned to apply to women whose expected week of childbirth begins on or after 5 October 2008.  This later application of regulation 5 of the 2008 Regulations will ensure consistency with the proposed changes to the Maternity and Parental Leave etc. Regulations (Northern Ireland) 1999.

Note:  This publication is not intended to be, nor should it be considered as amounting to, a substitute for legal advice on individual cases.  Users should seek their own independent advice where required.

Office of the First Minister and deputy First Minister

Equality, Rights and Social Need Division

April 2008