The long-awaited amendments to the Sex Discrimination Act (SDA) came into force this week. In this Briefing, we look at those amendments, and in particular a new right for women on additional maternity leave to claim the same contractual terms as those applying during ordinary maternity leave. This is a significant extension in maternity rights and for most employers will require a change to their maternity policies.
Summary of changes
The Sex Discrimination Act 1975 (Amendment) Regulations 2008 introduced the following changes from 06 April 2008:
- An amended definition of discrimination on grounds of pregnancy or maternity, which removes any element of comparison between those employees who are pregnant (or on maternity leave) and those who are not
- An amended definition of harassment, which removes the causal link between harassment and the sex of the person being harassed. This means that the harassment need only be "related to" the sex of the victim or any other person
- New liability for employers who fail to take reasonable steps to protect an employee from third-party harassment, where such harassment is known to the employer to have occurred on at least two other occasions
- A right for women on compulsory maternity leave (this is the two-week period following childbirth) to payment of any bonus that relates to that period. This right will apply to women whose expected week of childbirth falls on or after 05 October 2008
- A right for women on additional maternity leave to make claims for discrimination in relation to terms and conditions of employment in the same way as during ordinary maternity leave. Again, this will apply to women whose babies are expected on or after 05 October 2008.
Extended maternity rights – what does it mean for employers?
The change that is 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. 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 05 October 2008. This will also enable the Government to make changes to the Maternity and Parental Leave Regulations to reflect the changes to the SDA.
Women on ordinary maternity leave are entitled to continue to benefit from all the normal terms and conditions of their contract, except remuneration (other than maternity pay). Currently, a woman on additional maternity leave will benefit from a much more limited range of terms. However, once the new rights apply, there will be no distinction between ordinary maternity leave and additional maternity 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).
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. It is therefore essential that employers review their current policies (whether they are contained in staff handbooks or are separate) in good time before October to ensure that any woman who qualifies for the extended rights is treated in accordance with the new rules.
www.mishcon.comThis article is only intended as a general statement and no action should be taken in reliance on it without specific legal advice.
