UK: Sex Discrimination - Changes in the Pipeline

The Government has launched consultation on proposed changes to the Sex Discrimination Act ("SDA"), expected to be implemented on 1 October 2005. In this article, we highlight the main changes. We also report on a recent Court of Appeal case which focused on whether employees are entitled to holiday pay under the Working Time Regulations when they are on long-term sick leave.

The Government is proposing changes to the SDA to ensure that it complies with amendments to the EU Equal Treatment Directive. Member States have until October 2005 to implement these changes.

Firstly, a new definition of harassment will be inserted into the SDA. Similar provisions prohibiting harassment are already contained in the legislation dealing with other types of discrimination. Currently, an employee wanting to bring a claim for sexual harassment would have to rely on case law, but with the new express prohibition on sexual harassment, this will constitute a separate form of discrimination under the SDA. The new provision will cover conduct which has been carried out on the grounds of a person's sex or gender reassignment and which has the purpose or effect of either violating that person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Conduct which is sexual in nature, rather than on the grounds of a person's sex, will also be prohibited.

Secondly, a new reference to discrimination on grounds of pregnancy and maternity leave will be added to the SDA. Less favourable treatment on such grounds already constitutes unlawful sex discrimination as a result of case law. However, the new changes will make it explicit in the SDA that such treatment is prohibited.

Thirdly, there will be a new definition of indirect discrimination in the SDA to bring it into line with legislation dealing with discrimination on the grounds of race, sexual orientation and religion or belief. The new provision will highlight the elements of the test for indirect discrimination more clearly. In addition, it will recognise that it will not always be possible or necessary to require detailed statistical calculations to show disadvantage to a particular group of people (i.e. women), which is one of the reasons why it is often difficult to bring a claim for indirect sex discrimination under the current law.

Other changes include extending the scope of the territorial provisions in the SDA to cover employees who work wholly outside Great Britain. This will apply in circumstances where the work is for an organisation in Great Britain and where the employee in question was either ordinarily resident in Great Britain when she applied for the job or at some time during the employment. This extension of jurisdiction is in line with other discrimination legislation but will have the effect of covering significant numbers of employees who ordinarily don't work in Great Britain. The proposed changes will also introduce a new eight-week response period for sex discrimination questionnaires and will extend the SDA to certain office holders.

Joanna Blackburn is a member of the Employment Lawyers Association Working Party responding to the Government consultation and would welcome your views. Please contact her if you are interested in finding out more about the changes to the SDA or if you have any comments to make.

The Court of Appeal has now overturned previous rulings by the Employment Appeal Tribunal that employees on long-term sick leave were entitled to paid holiday under the Working Time Regulations even though they were not attending work. The Court of Appeal case concerned employees on long-term sick leave who had exhausted their entitlement to contractual and statutory sick pay and who were trying to claim that they should have received paid holiday during their sick leave. In this case, the employees had been off work for more than a year and would therefore have forfeited their holiday under the Working Time Regulations (as the Regulations do not permit any carry-over of untaken holiday).

It is not clear how the decision would be applied to shorter periods of sickness absence. Holiday will continue to accrue during such absence and it would therefore be possible for the employee to take such holiday later in the holiday year, after they have returned from sickness absence, and the decision is unlikely to affect this. However, there may be cases where sickness occurs late in the holiday year, preventing the employee from using up holiday entitlement before the end of the year. In the absence of any carry-over provisions in the contract, it is likely that in light of the Court of Appeal decision, such unused holiday would be forfeited, without any entitlement to pay. In addition, if an employee has been on sick leave for a part of the holiday year and the employment is then terminated before the employee has recovered, the decision indicates that in such a case, the employee may lose the entitlement he or she would otherwise have had to accrued holiday pay on termination.