This blog will cover the following 3 points:
- S~x Discrimination Act changes
- Corporate Manslaughter
- Maternity, Adoption, Paternity and SSP rates
S~x Discrimination Act changes
The S~x Discrimination Act 1975 (Amendment) Regulations 2008 make various significant changes to the S~x Discrimination Act to bring it properly into line with the Equal Treatment Directive.
In essence, the regulations will do 4 things:
- introduce a revised definition of s~x-related harassment with effect from 6 April 2008
- increase employers’ potential liability for third-party harassment with effect from 6 April 2008
- extend a woman’s right of protection from pregnancy/maternity discrimination with effect from 6 April 2008
- improve rights during compulsory and additional maternity leave with effect from 5 October 2008
1. Definition of s~x harassment
Currently a person subjects a woman to harassment if, on the ground of her s~x, he engages in unwanted conduct that has the purpose or effect of violating her dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The phrase ‘on the ground of her s~x’ is replaced with the phrase ‘related to her s~x or that of another person’. This much broader definition of s~x-related harassment will mean that, from 6 April 2008, people who are not subject to the unwanted conduct themselves also now receive protection. An example might be a woman (or man) in an office where s~xual banter is rife. Although it might not be directed at her (or him) or caused by her/his presence, that person will have a claim if it creates an offensive environment for them.
2. Harassment by third parties
From 6 April 2008 an employer will be liable for s~x discrimination when a third party (e.g. customers, clients or contacts) subjects an employee to s~x-related or s~xual harassment – but only if the employer has failed to take reasonably practicable steps to stop this happening. The most obvious implication of this is for employers who have staff in customer-facing roles, as employers could end up carrying the can for harassment by customers. This provision will only apply if 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. Employers will need to have rules/procedures in place to deal with this. They will also need to inform third parties of their obligations in this regard, particularly as the regulations make it clear that liability will be incurred irrespective of whether the third party is the same or a different person on each occasion.
3. Abolition of comparator
The requirement for a comparator in cases of alleged pregnancy/maternity discrimination is removed from 6 April 2008. A woman will now only have to show that she has been treated less favourably on the ground of her pregnancy or the fact that she took or sought to take maternity leave. She no longer has to compare her treatment to that of a woman who is not pregnant or taking maternity leave.
4. Terms and conditions during maternity leave
Women whose expected week of childbirth begins on or after 5 October 2008 will have greater rights in two respects. Firstly, as well as contractual bonuses (to which they are already entitled), women will be entitled to discretionary (i.e. non-contractual) bonuses during the compulsory 2-week maternity leave period. Secondly, the distinction between ordinary maternity leave (OML) and additional maternity leave (AML) will be removed in relation to terms and conditions. Women will be entitled to the same (non-pay) benefits irrespective of whether they are taking OML or AML, e.g. continuance of annual leave, health club membership, company car, mobile phone etc.,etc.
Corporate Manslaughter
The provisions of the Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008.
A few bulleted highlights appear below. However, many of the issues here relate to the implementation and observance of a relevant and effective health and safety policy. Health and safety is becoming an increasingly complex area and an internal or external expert review of policy/procedures may be appropriate.
At the end of this section are links to two PDF documents that may be useful.
- Both large and small companies can be held liable for manslaughter where gross failures in the management of health and safety cause death
- An organisation will be guilty of the new offence of corporate manslaughter (corporate homicide in Scotland) if the way in which its senior management managed or organised its activities caused a person’s death and was a gross breach of a duty of care the organisation owed them
- Senior management is defined as those persons who play a significant role in the decision-making process about how the company’s activities are managed and organised. It includes not only those who manage activities but also those who play a significant role in the making of those decisions.
- The offence applies to all corporate bodies
- The new offence targets the liability of organisations themselves and does not apply to individual directors or others
- The new offence does not impose new regulations on business but it does reinforce the need for organisations to be up to date with health and safety law
- Companies (and in particular directors) should ensure that they are well prepared by doing all that they can to comply with all existing health and safety legislation, Approved Codes of Practice, guidance and regulations, as their failure to comply may be taken into consideration by a jury in reaching a decision. Directors will also want to satisfy themselves that they have an adequate ‘paper trail’ demonstrating their attention to health and safety through policies, procedures and practices, and should arrange for a legal audit of their procedures so as to ensure compliance with health and safety legislation
- Penalties include an unlimited fine (probably based on a percentage of the company’s turnover), remedial and publicity orders. A remedial order requires an organisation to take steps to remedy any management failure that led to death. The court can impose an order publicising the fact that the company has been convicted of the offence, providing details, the amount of fine imposed and the terms of any remedial order made
- The new offence applies in England, Wales and Scotland
Click on the links below for further information:-
Maternity, Adoption, Paternity and SSP rates
With effect from April 2008:-
- The weekly rate of statutory maternity pay (SMP), statutory paternity pay (SPP) and statutory adoption pay (SAP) will increase to £117.18
- The standard rate of statutory sick pay (SSP) will increase to £75.40
- The earnings threshold for the above payments will increase to £90
If you need any further information, please do contact Keith Gleadall or Colleen Guy at info@hershguy.com or 01883 342 218