1 Jun 2008
Gillian Dowling
Job Title
In the latest column for VBJ on personnel issues in practice, GILLIAN DOWLING looks at harassment and maternity leave considerations
IN THIS ISSUE we will look at two major changes to affect employers, namely developments in the laws on harassment and maternity leave.
The changes amend the Sex Discrimination Act, as a result of a High Court decision last year and case law from the European Court of Justice, which showed that the act did not comply entirely with the European Directive.
The definition of sexual harassment has widened so that a person subjects a woman to harassment if he engages in unwanted conduct that is related to her sex or that of another person and has the purpose or effect of:
• violating her dignity; or
• creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
This change now opens up the possibility for someone to bring a claim who witnesses sexual harassment and finds it offensive. It also means that the potential for claims is greater generally. Cases previously not held to be sexual harassment may now fall within this wider definition.
Examples of situations when the new definition of harassment might apply were discussed in guidance accompanying the amending regulations. One example might be of a male manager going into a female toilet to shout at a female member of staff in an intimidating fashion because he thinks that she is trying to avoid work. It is arguable that following her into the women’s toilets is conduct related to her sex and, therefore, could fall within the new definition of harassment. Another example often discussed is that of male employees putting offi ce equipment on shelves that are too high for a female colleague to reach. This may be done out of spite, because they do not like her, but could be classed as conduct related to her sex, because women are generally shorter.
The definition of harassment can apply equally to a woman harassing a man. It is also technically possible, although rare, for the harasser and the victim to be of the same sex.
Other changes to the Sex Discrimination Act mean that employers can now be liable if they fail to take reasonably practicable steps to prevent the repeated harassment of an employee by third parties (in other words, people outside the employer’s organisation, such as clients and customers). The employee has to be subjected to the harassment in the course of the employment and the employer has to know that the woman has been subjected to harassment on at least two other occasions. The third party could be the same person or a different person on each of these two occasions. Employers who have employees in client-facing roles may potentially have a greater risk of liability compared to offi ce-based staff, but in some ways this new law is simply an extension of the legal protection already in place for employees. It is also possible for an employee to bring a claim under the Protection from Harassment Act 1997, if there are two incidents of harassment by an employer. Even before the recent changes to the Sex Discrimination Act, employers had to take any allegation of harassment reported to them seriously, sorting issues out early.
New rights also apply to pregnant employees who have an expected week of childbirth on or after October 5, 2008. A woman on maternity leave will be entitled to receive the same contractual benefi ts (excluding pay) throughout the whole of the maternity leave period, which lasts up to 52 weeks. The current position is that benefi ts have to be given during the first 26 weeks of maternity leave (known as ordinary maternity leave or OML for short), but can be reduced during the second 26 weeks of leave (known as additional maternity leave, “AML”).
This change will mean that all benefi ts will have to be provided to the employee for the whole of the maternity leave. Cars for private use (such as company cars) will have to be retained by the employee for the 52-week maternity leave period and contractual holiday entitlement will accrue throughout that period too. Pay, however, is treated differently, as remuneration does not have to be paid. Instead, the employee on maternity leave receives 39 weeks’ statutory maternity pay (SMP) and any pension contribution should be paid for that amount of time.
