Amending the Sex Discrimination Act
The consultative draft Regulations to amend the Sex Discrimination Act include important new definitions of sexual and sex-based harassment, but significantly omit any proposals on tackling pay discrimination, writes Michael Rubenstein.
Consultative draft Regulations amending the Sex Discrimination Act (SDA)* to implement the revised EU Equal Treatment Directive 2002/73 have been issued by the Department of Trade and Industry's (DTI) Women and Equality Unit, together with a consultation document† and a partial regulatory impact assessment**.
The headline change to the existing legislation will be a freestanding definition of sexual harassment, but a number of other important changes are proposed, including a new definition of indirect discrimination and an express prohibition of discrimination on the ground of pregnancy. There is also a controversial omission as regards pay discrimination.
The consultation
period ends on 31 May. The amendments are planned to come into force on
Because the Directive is being implemented by Regulations made under the European Communities Act, it can go no further than the underlying Directive - in this case, the revised Equal Treatment Directive - which applies only to employment and vocational training. This means that no changes can be made by the Regulations to other parts of the SDA outside these areas.
Harassment and sexual harassment
4A(1) For the purposes of this Act, a person subjects a woman to harassment if -
(a)on the ground of her sex, he engages in unwanted conduct that has the purpose or effect -
(i)of violating her dignity, or
(ii)of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,
(b)he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect -
(i)of violating her dignity, or
(ii)of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or
(c) on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in paragraph(a) or (b) he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct.
(2) Conduct shall be regarded as having the effect mentioned in sub-paragraph (i) or (ii) of subsection (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect.
Sexual
harassment has been treated under
The consultative Regulations, as set out above, propose three changes of substance from the definition used in the Directive. Two of these relate to the definition of "harassment" and one to the definition of "sexual harassment".
Harassment
So far as harassment is concerned, this is defined by the Directive as "where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating, or offensive environment".
The definition adopted in the draft Regulations is the same as that used by the government for implementing the Framework Employment and Race Directives, as reflected in the 2003 Regulations on race, religion or belief and sexual orientation. These all refer to "harassment where, on the grounds of...", whereas the Directives that they implement refer to harassment "related to". The Disability Discrimination Act Amendment Regulations prohibit harassment "related to" disability, consistent with the definition of disability discrimination itself.
The difference between harassment "on grounds of" sex and harassment "related to" sex may be significant when it comes to harassment in a gender context. "Related to" is wider than "on the grounds of" and would have a lower threshold of proof. The difference between the two standards has become apparent in the definition of disability discrimination. It is arguable that a test using "on the grounds of" does not correctly implement the EU Directive. If that is true, the fact that the same wording has been used in the other regulations casts doubt on those too, rather than providing a justification for the proposed language.
The point is ultimately simple. The intention of the Directive is to create a freestanding definition of unlawful gender harassment. The Directive stipulates that: "Harassment and sexual harassment within the meaning of this Directive shall be deemed to be discrimination on grounds of sex and therefore prohibited." This formulation works where the issue is whether there is conduct that is "related to" sex, as it does where the question is whether there was "sexual conduct". Both of these tests can be satisfied without reference to how someone of the opposite sex was, or would be, treated. Whether there has been unwanted conduct towards a woman "on the ground of her sex", by contrast, seemingly can only be determined by reference to the treatment of a man. If a man was treated the same way, the conduct was not "on the ground of her sex", even if it has the effect of creating a humiliating working environment for the worker concerned.
This is
precisely the point at which our harassment law is at the moment following the
decision of the House of Lords in Pearce
v Governing Body of
The second difference in wording from the Directive is less controversial. Whereas the Directive defines sex-based conduct as having the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating, or offensive environment, the consultative draft Regulations would cover conduct that falls within either of those limbs. This is consistent with the approach adopted in the other Regulations implementing the Race and Framework Employment Directives.
The definition of sexual harassment proposed in the consultative draft Regulations encompasses "unwanted verbal, non-verbal or physical conduct of a sexual nature". This is taken straight from the language of the Directive, which in turn followed the wording of the 1991 European Commission Code of Practice on measures to combat sexual harassment at work (EOR 41).
There is only one difference in this part between the draft Regulations and the Directive. The Directive gives "creating an intimidating, hostile, degrading, humiliating, or offensive environment" as an illustration of conduct of a sexual nature that has "the purpose or effect of violating the dignity of a person". However, the draft Regulations, more consistently with the code of practice, propose that these two consequences shall be treated as separate limbs, proof of either of which will be sufficient.
"Conduct of a sexual nature" is not further defined in the draft Regulations. The Women and Equality Unit points out that "it would be extremely difficult and undesirable to draw up an all-encompassing description of sexual conduct which would amount to sexual harassment under the SDA." Instead, Acas has been asked to provide practical guidance.
In this context, it may be worth noting that in the 1993 European Commission Guide to Implementing the European Commission Code of Practice - How to Combat Sexual Harassment at Work (EOR 52), which I wrote with Ineke De Vries, we did set out some illustrations. We said that:
"Physical conduct of a sexual nature means unwanted physical contact ranging from unnecessary touching, patting or pinching or brushing against another employee's body, to assault and coercing sexual intercourse.
"Verbal conduct of a sexual nature can include unwelcome sexual advances, propositions or pressure for sexual activity; continued suggestions for social activity outside the workplace after it has been made clear that such suggestions are unwelcome; offensive flirtations; suggestive remarks, innuendoes or lewd comments. Such behaviour defines women's role as sexual objects rather than as work colleagues.
"Non-verbal conduct of a sexual nature refers to the display of pornographic or sexually suggestive pictures, objects or written materials; leering, whistling, or making sexually suggestive gestures. These behaviours may make employees feel uncomfortable or threatened and undermine the position of a woman who seeks to deal with her fellow employees with professional dignity."
The Regulations will also make it unlawful to subject a person to a detriment on the grounds of that person's rejection of, or submission to, harassment or sexual harassment.
Gender reassignment
Discrimination on grounds of sex now includes discrimination as a result of gender reassignment. Separate provisions are proposed that will prohibit harassment due to a person's gender reassignment.
Indirect discrimination
3. In the 1975 Act, in section 1(2), for paragraph (b) (definition of indirect discrimination) substitute -
"(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but -
(i) which puts or would put women at a particular disadvantage when compared with men,
(ii) which puts her at that disadvantage, and
(iii) which he cannot show to be a proportionate means of achieving a legitimate aim."
The definition of indirect sex discrimination was changed for employment purposes by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 . It will be changed again and brought into line with the definitions as regards race, religion or belief and sexual orientation.
There are two main changes. First, the sex discrimination definition currently measures the adverse impact of a provision, criterion or practice by whether "it would be to the detriment of a considerably larger proportion of women than of men". This is to be replaced by a test of whether the provision, criterion or practice "puts or would put women at a particular disadvantage when compared with men".
As the clear consultative document from the Women and Equality Unit explains: "This provision recognises that it is not always possible or necessary to use detailed statistical calculations to show particular disadvantage. However, employment tribunals will still need to consider whether a provision, criterion or practice causes disadvantage to a particular group of people. Statistics could be helpful in establishing evidence of particular disadvantage, however such evidence could also come from experts or other witnesses."
Second, the test of justification is to be made consistent with the other definitions. The existing test of whether the employer can show that the provision, criterion or practice is "justifiable irrespective of the sex of the person to whom it is applied", will be replaced by a burden on the employer to show that the provision, criterion or practice is "a proportionate means of achieving a legitimate aim".
The pre-2001 definition of indirect sex discrimination will continue to apply to cases of discrimination outside the area of employment and vocational training.
Direct discrimination
The Directive defines direct discrimination as where one person is treated less favourably "on grounds of sex" than another person, has been, or would be treated in a comparable situation. The SDA defines direct discrimination as less favourable treatment "on the grounds of her sex".
Adopting the language used in the Directive, "on grounds of sex" would broaden the coverage of the SDA, in that it would cover less favourable treatment because of association with someone of a particular sex, or a false assumption of the claimant's sex. It would also mean that the language is consistent with the other discrimination statutes.
However, the DTI has decided not to make the change in the Regulations, mainly because it would mean different definitions of direct discrimination between employment and non-employment. The partial Regulatory Impact Assessment points out that "the lack of evidence on discrimination experienced because of the victim's association with someone of a particular sex, or false assumptions of the victim's sex, suggests that making this amendment to the SDA would be disproportionate to the extent of any problem. Thus, the benefits would be insufficient to justify a change which would additionally generate confusion resulting from two definitions of direct discrimination across the SDA."
Pregnancy and maternity discrimination
4. In the 1975 Act, after s.3, insert -
"3A(1) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if -
(a) either of the conditions in subsection (2) is fulfilled (or both are), and
(b) on the ground of the woman's pregnancy, the person treats her less favourably than he would treat her had she not become pregnant.
(2) The conditions are -
(a) that the woman is pregnant;
(b) that the woman is exercising, or is entitled to exercise, a statutory right to maternity leave.
3B(1) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if, on the ground that she is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, he treats her less favourably than he would treat her if she were neither exercising nor seeking to exercise, and had neither exercised nor sought to exercise, such a right."
This provision sets out an express right for a woman not to be less favourably treated on grounds of pregnancy, or on grounds that she is exercising her right to maternity leave, than she would have been treated had she not become pregnant or was not exercising her right to maternity leave. This complies with a requirement in the Directive that: "Less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC shall constitute discrimination within the meaning of this Directive."
The government is intending to remove the current limited exemption under unfair dismissal law for employers with five or fewer employees in respect of failing to allow a woman on maternity leave or an adopter to return at the end of additional maternity leave because it was not reasonably practicable. It is proposed to remove this in April 2007, when other changes are to be made to maternity leave arrangements. That exemption would be inconsistent with the new language.
Otherwise, the consultative document insists that "no new rights or duties will be created, but it will be clearer that discrimination on grounds of pregnancy or maternity leave is sex discrimination." However, the wording of the proposed new Regulations raises some questions. On their face, the provisions would prohibit any less favourable treatment of someone because, for example, they exercised their right to statutory maternity leave, compared with how they would have been treated if they had not taken maternity leave. Does this mean that they would be entitled to the pay and benefits they would otherwise have received? That is certainly not what the government intends, but the wording might be interpreted that way.
Territorial extent
11(1) Section 10
of the 1975 Act (meaning of employment at an establishment in
(2) For subsection (1) substitute - "
(1) For the
purposes of this Part and section 1 of the Equal Pay Act 1970 ('the relevant
purposes'), employment is to be regarded as being at an establishment in
(a) the employee does his work wholly or partly in
(b) the employee does his work wholly outside
(1A) This subsection applies if -
(a) the employer has a place of business at an establishment in
(b) the work is for the purposes of the business carried on at that establishment; and
(c) the employee is ordinarily resident in
(i) at the time when he applies for or is offered the employment, or
(ii) at any time during the course of the employment."
The SDA is
currently restricted to discrimination against applicants and employees at an
establishment in
All the other discrimination statutes now have a wider definition, which the government proposes to apply to the Sex Discrimination and Equal Pay Acts =to achieve consistency, even though it may not be required by the amended Equal Treatment Directive. The partial Regulatory Impact Assessment admits that "when implementing strands of the article 13 Race and Employment Directives, legal advice indicated that s.10 of the SDA would probably be contrary to Community law, due to earlier case law about work connected with a member state."
Accordingly, the
draft Regulations provide that a person's employment will be regarded as being
at an establishment in
"(a) the employer has a place of business at an establishment
in Great
(b) the work is for the purposes of the business carried on at that establishment, and
(c) the employee is ordinarily resident in
Pay discrimination
A significant,
and controversial, omission from the proposed legislation is anything about pay
discrimination. The issue is not even mentioned as one of the many areas where
the DTI thinks the amendments to the Directive do not require the
Article 3(1)(c) of the amended Directive stipulates that it applies to "employment and working conditions, including dismissals, as well as pay, as provided for in Directive 75/117/EEC". The Equal Pay Directive 75/117 requires "the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration" for the same work or for work of equal value.
Until now, the Equal Treatment Directive has contained no reference to pay, so the obvious question is what is the function of the new wording? One plausible argument is that it is intended to ensure that there are no cracks through which someone discriminated against on grounds of sex in terms of pay will fall. For example, all the other discrimination statutes allow an employee to complain about direct or indirect discrimination on the relevant ground as to the terms of employment, including pay, which they are afforded. This is precluded under the SDA by the absence of a comparable provision as to an employee's "terms of employment" and by s.6(5), which excludes any claim under the SDA as regards "the payment of money".
Yet why should it be open to an applicant to claim discrimination in regard to their pay in respect of race, disability, religion or belief, or sexual orientation, when they are only able to claim sex discrimination in pay where they meet the requirements to bring their case under the Equal Pay Act?
Unlike the SDA (or the other discrimination statutes), the Equal Pay Act requires an actual comparator. A hypothetical comparator who "would have" been paid more is not sufficient. Moreover, it is not enough for an equal pay applicant to prove that they would have been paid more had they been a man, and that their pay was depressed because they are a woman. They also have to show that they are employed on equal work or work of equal value with their comparator.
In Revised Equal Treatment Directive , I drew attention to the fact that there is no remedy under equal pay law for those whose pay is discriminatorily undervalued in comparison with a person of the opposite sex. An example of this would be a group of women whose work has been evaluated as being worth 75% of that a group of men, but who are paid only 50% of the rate for the men's job. Whether this is what the amended Directive requires is certainly open to question, but it is rather disingenuous of the DTI to pretend the issue does not exist.
* Employment Equality (Sex Discrimination) Regulations 2005
†Equality and Diversity: Updating the Sex Discrimination Act
**Partial Regulatory Impact Assessment: Proposal for the implementation of the amended Equal Treatment Directive
All three documents are available at http://www.womenandequalityunit.gov.uk/legislation/ .
