Equal Opportunities Commission v Secretary of State for Trade & Industry

National implementing measures must achieve the result required by a directive, but purposive construction is constrained by legal certainty, clarity and the limits of interpretation. Harassment related to sex is conceptually distinct from direct discrimination on grounds of sex: it requires an association with sex, not causation by the complainant’s sex. A statutory comparator cannot be required where European law protects pregnancy or maternity as a special biological condition. Statutory maternity leave must not be divided into ordinary and additional periods so as to remove materially equivalent discrimination remedies. Where compliant construction would require extensive textual rewriting and would remain unclear, legislative amendment is required.

The Equal Opportunities Commission sought judicial review of the Secretary of State’s implementation of Directive 2002/73/EC through the Employment Equality (Sex Discrimination) Regulations 2005. The challenge concerned the statutory definitions of harassment, the objective assessment of harassment’s effect, liability for third-party conduct, pregnancy and maternity discrimination, and exceptions applying during ordinary and additional maternity leave.

The parties accepted that regression was impermissible and that Member States had flexibility as to the form of implementation. The central issues were whether the amended Sex Discrimination Act 1975 could be construed compatibly with the Directive, and whether such construction would preserve legal certainty and comprehensibility.

1. The claim succeeded on the principal defects identified. The court found that the relevant provisions required amendment, but reserved the formal order to allow the defendant to consider the judgment’s conclusions.

2. Directive implementation permits a Member State to choose its form and method, but the national measure must be fully effective and sufficiently clear and certain. The interpretative obligation does not authorise rewriting legislation where the required transposition would be extensive, obscure or ineffective.

3. The phrase “on the ground of her sex” in s4A(1)(a) of the Sex Discrimination Act 1975 is causative. Harassment under the Directive is instead based on unwanted conduct related to sex. The two concepts must not be assimilated merely because harassment is deemed to be discrimination for the purpose of prohibition. Section 4A(1)(a) therefore required recasting.

4. The challenge to the objective assessment of harassment’s effect failed. The effect of conduct is assessed objectively by reference to all the circumstances, including the claimant’s perception, understanding, motive and intention.

5. The Directive did not expressly require vicarious liability for third-party harassment. Nevertheless, the causative wording of s4A made it difficult to accommodate liability for an employer’s knowing failure to prevent continuing third-party harassment. That issue was linked to the necessary recasting of the harassment provision.

6. Section 3A was the exclusive route for pregnancy and maternity-leave discrimination. A statutory requirement for a non-pregnant or non-maternity-leave comparator was incompatible with the special protection required by European law and had to be removed. Comparisons may assist evidentially, but cannot be made mandatory.

7. Section 6A also required amendment. The ordinary-leave definition could not exclude the claim recognised in Lewin v Denda. Nor could statutory additional maternity leave be subject to materially narrower discrimination remedies than ordinary leave, having regard to Land Brandenburg v Sass.