Employers need to be aware of altered maternity and sex discrimination rights
April saw some key changes to the law governing sex discrimination and maternity rights. The government estimates that the maternity changes will cost employers £156m, while the changes to sexual harassment law may lead to more successful claims and some headaches for employers.
Employers could find themselves liable for more of their employees' actions as a result of a change to the definition of sexual harassment - it now needs only to be conduct “related to sex”, instead of “on the grounds of sex”. This means the unwanted conduct need only be in some way associated with the person complaining being a woman (or man).
So-called jokes about mother-in-laws and women being poor drivers, for instance, will now certainly be covered and be capable of being unlawful harassment, even if the “joker” says similar things to men. Another example (from a recent case) could be the manager who follows a female employee who he thinks is slacking into the women's toilet - this will be harassment, even if he would have done the same to a man.
Harassment of staff by non-employees
Another change will make employers liable for the sexual harassment of staff by non-employees. This will apply where an employer knows the employee has been subject to harassment on at least two occasions by anyone but has failed to take reasonable steps to prevent further harassment. Importantly, the three incidents of harassment need not be committed by the same person, but only need be to the same employee.
This could present a real challenge where workers are on sites in run-down areas or those where they suffer abuse from locals. Such situations could also arise where staff work alongside independent contractors or another organisation's staff, who “tease” or make comments to an employer's own staff.
Once an employee has been harassed twice, employers now have a duty to positively take all practicable steps (quite a high test), failing which discrimination will be found. In practice, this is going to lead to tough decisions being made to “protect” female workers where incidents are known to have occurred, even if the employer has no control over those abusing their workers or “cracking the gags”.
Terms and conditions during maternity leave
For women on maternity leave, the legal difference has been removed for the requirements about terms and conditions during ordinary maternity leave (usually the first 26 weeks) and additional maternity leave (the rest of the year's absence). This could be expensive, particularly when coupled with more women taking longer maternity leave as a result of the extension of maternity pay to 39 weeks (and ultimately 52).
This change is not about pay itself, but will be important as it applies to other benefits that most employers have historically treated differently for the longer period of maternity leave. So if an employee is able to use her company car for private use, she must be allowed to keep it for all of her maternity leave. Private medical cover must continue (if it is provided) and annual leave must accrue throughout the maternity leave.
This “simplification” of the law still leaves a slight difference about the rules governing the role to which the woman returns after the different periods of leave.
These terms and conditions changes will apply only to those whose expected week of childbirth is on or after 5 October 2008..
Phil Allen is employment law partner at Mace & Jones