Employers warned over changes to maternity and sex discrimination rights

A leading law firm is warning employers about key changes to the law governing sex discrimination and maternity rights.

Mace & Jones employment law partner Mark Hatfield said the Government has issued important new regulations from 6 April.

“It is vital employers are up to speed with these significant changes which will require them to review their policies and practices,” he said.

Mr Hatfield said the Government estimates the maternity leave changes will cost employers £156m though they will only apply to those whose expected week of childbirth is on or after 5 October 2008.

“The difference in the treatment of Ordinary Maternity Leave and Additional Maternity Leave for terms and conditions will be removed,” he said. “ The government estimates this will cost employers £156 million, so it could be significant, particularly when coupled with more women taking AML with the extension of maternity pay to 39 weeks and ultimately 52. This is important for employers who limit the provision of benefits, other than remuneration, during AML as this will need to change. Common examples are employers who recover company cars at the end of OML, those who stop private medical cover,or those who take a different approach to annual leave accrual. This "simplification" of the law does not alter the difference in rules about the job to which the employee returns, which still vary between OML and AML.”

Mr Hatfield said the other key difference is for employers who provide benefits based upon service, but have excluded time spent on AML, as this will need to change.

“This will apply to NHS Trusts and most public sector organisations,” he said. “All maternity leave will now need to count for these benefits and rights not just the period on OML for: incremental pay awards; career progression; and increased benefits such as annual leave.”

Mr Hatfield said further important changes included broadening the definition of harassment.

“Harassment will become unwanted conduct "related to her sex", instead of "on the grounds of sex". This new definition will cover a wider range of conduct as the harassment is only required to be associated to the victim's gender, not caused by it. What will now be covered includes "jokes" about mother-in-laws and women being poor drivers, which are clearly related to gender but may not really be motivated by it. Another example , from a recent case, may be the manager who follows a female employee into the women's toilet. In practice, we would be surprised if this changed employers' practices, but it will limit our ability to run certain arguments as a defence.”

Mr Hatfield added that employers will now be liable for sexual harassment of employees by people who are not employees.

“This will apply where the employer knows the employee has been subject to harassment on at least two occasions by someone who is not a work colleague and the employer has failed to take such steps as would have been reasonably practicable to prevent members of the public and service users harassing the employee,” he said. “Importantly, the three incidents of harassment only need to be to the same employee, not by the same person. This change could be very important for organisations whose employees have contact with the public, patients or service users - particularly in areas where the public can be rude or abusive. Once an employee has been harassed twice, employers now have a duty to positively take all practicable steps, failing which discrimination will be found - this could be very tough in practice and increases the importance of fully dealing with employee complaints about non-employees.”