Employment Law - New Pitfalls for Employers in Discrimination Law

Statutory changes to discrimination law are afoot, this time relating (principally) to female employees.

These changes, together with recent case law, may not be particularly radical but they certainly shift ground against employers.

In order to meet the requirements of the latest European Equal Treatment Directive, Regulations coming into effect on 1st October introduce into UK law for the first time provisions expressly prohibiting “sexual harassment” - defined as “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature” - and discrimination on the grounds of sex.

“Sexual nature” is not defined in the Regulations. Their impact is likely, therefore, to be determined by the breadth with which the Tribunal construes the meaning of this phrase.

Although there is no general right for a woman to return to work from maternity leave on a part-time basis, her employer may find itself in difficulty if it turns down such a request. The Court of Appeal recently ruled that British Airways had indirectly discriminated against a female pilot, on the grounds of her sex, when it refused to allow her to halve her working week so as to make satisfactory childcare arrangements.

BA argued the burdens of additional cost, impact on customer service and safety concerns.

In making its decision, the Court of Appeal held that in indirect sex discrimination cases the employer does not enjoy the same margin of discretion as is provided by “the range of reasonable responses” test in unfair dismissal cases.

An employer will from now on, in indirect sex discrimination cases, have to show that action or inaction which has a detrimental impact on a female employee is a “proportionate means of achieving a legitimate aim”.

Employers are advised to publish immediately comprehensive and general guidance on office conduct and to have clear policies on bullying and harassment.