Citation, commencement, application, extent and interpretation

1. —(1) These Regulations may be cited as the Sex Discrimination Act 1975 (Amendment) Regulations 2008.

(2) These Regulations shall come into force on 6th April 2008.

(3) The amendments made by regulation 5 apply only in relation to a case where a woman’s expected week of childbirth as defined in regulation 2(1) of the Maternity and Parental Leave etc. Regulations 1999( 3 ) (interpretation) begins on or after 5th October 2008.

(4) These Regulations do not extend to Northern Ireland.

(5) In these Regulations “the 1975 Act” means the Sex Discrimination Act 1975( 4 ).

Discrimination on the ground of pregnancy or maternity leave

2. —(1) Section 3A of the 1975 Act( 5 ) is amended as follows.

(2) In subsection (1)(a) (definition of discrimination on the ground of pregnancy), omit the words “than he would treat her had she not become pregnant”.

(3) In subsection (1)(b) (definition of discrimination on the ground of maternity leave), omit the words “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”.

(4) In subsection (2) (definition of discrimination on the ground of compulsory maternity leave), omit the words following “less favourably”.

Harassment

3. In the 1975 Act, in section 4A(1)(a)( 6 ) (definition of harassment), for “on the ground of her sex, he engages in unwanted conduct that” substitute “he engages in unwanted conduct that is related to her sex or that of another person and”.

Liability of employers for failing to protect employees from third party harassment

4. In the 1975 Act, after section 6(2A)( 7 ) (unlawful harassment) insert—

“ (2B) For the purposes of subsection (2A), the circumstances in which an employer is to be treated as subjecting a woman to harassment shall include those where—

(a) a third party subjects the woman to harassment in the course of her employment, and

(b) the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so.

(2C) Subsection (2B) does not apply unless the employer knows that the woman has been subject to harassment in the course of her employment on at least two other occasions by a third party.

(2D) In subsections (2B) and (2C), “third party” means a person other than—

(a) the employer, or

(b) a person whom the employer employs,

and for the purposes of those subsections it is immaterial whether the third party is the same or a different person on each occasion. ” .

Exception relating to terms and conditions during maternity leave

5. —(1) For section 6A of the 1975 Act( 8 ) (exception relating to terms and conditions during maternity leave) substitute—

“ Exception relating to terms and conditions during maternity leave

6A. —(1) Subject to subsection (2), section 6(1)(b) and (2) does not make it unlawful to deprive a woman who is on maternity leave of any benefit from the terms and conditions of her employment relating to remuneration.

(2) The reference in subsection (1) to benefit from the terms and conditions of a woman’s employment relating to remuneration does not include a reference to—

(a) maternity-related remuneration (including maternity-related remuneration that is increase-related),

(b) remuneration (including increase-related remuneration) in respect of times when the woman is not on maternity leave, or

(c) remuneration by way of bonus in respect of times when a woman is on compulsory maternity leave.

(3) For the purposes of subsection (2), remuneration is increase-related so far as it falls to be calculated by reference to increases in remuneration that the woman would have received had she not been on maternity leave.

(4) In this section—

“maternity-related remuneration”, in relation to a woman, means remuneration to which she is entitled as a result of being pregnant or being on maternity leave;

“on compulsory maternity leave” means absent from work in consequence of the prohibition in section 72(1) of the Employment Rights Act 1996;

“on maternity leave” means—

(a) on compulsory maternity leave,

(b) absent from work in exercise of the right conferred by section 71(1) of the Employment Rights Act 1996 (ordinary maternity leave), or

(c) absent from work in exercise of the right conferred by section 73(1) of that Act (additional maternity leave); and

“remuneration” means benefits—

(a) that consist of the payment of money to an employee by way of wages or salary, and

(b) that are not benefits whose provision is regulated by the employee’s contract of employment. ” .