The latest updates to sex discrimination legislation

7 Feb 2020 By Charlie Thompson

Charlie Thompson explains the recent changes in this area of employment law, including new guidance and potential Supreme Court rulings

EHRC guidance on sexual harassment

The Equality and Human Rights Commission (EHRC) has published guidance on harassment, with a large section on sexual harassment. The guidance provides definitions and examples of harassment, the effect that it can have in the workplace, responsibilities as an employer and how to prevent and respond to such harassment. 

Three-quarters of people who responded to the EHRC’s survey reported experiencing sexual harassment at work, and nearly all of the people who had been sexually harassed were women. This, the EHRC reported, “largely reflects power imbalances based on gender and is part of a spectrum of disrespect and inequality that women face in the workplace and everyday life”.

The report lists the following as a barrier to reporting sexual harassment in the workplace: 

  • the view that an employer would not take the issue seriously;
  • a belief that alleged harassers, particularly senior staff, would be protected;
  • a fear of victimisation; and
  • a lack of appropriate reporting procedures.

The EHRC additionally stated that a good anti-harassment policy has the potential to reduce sexual harassment in the workplace. The guidance provided the following tips on drafting a policy:

  • Confirm who the policy covers.
  • State that sexual harassment, harassment and victimisation will not be tolerated and can lead to disciplinary action.
  • Provide clear examples to illustrate each definition of the different forms of harassment.
  • Include an effective procedure for receiving and responding to complaints of harassment.
  • Include a commitment to review the policy at regular intervals and monitor its effectiveness.

Support for menopausal staff

Acas has published guidance on how employers can support menopausal staff and prevent a situation of sex discrimination. Some tips in the guidance include:

  • Make sure you provide flexible working for women going through menopause, which can be by altering working hours or by working from home.
  • Have a menopause policy that can go inside a staff handbook with arrangements available to women going through menopause.
  • Ensure that there are sufficient health and safety checks for women in the workplace.
  • Implement low-cost changes such as providing desk fans or moving individuals closer to a window.
  • Ensure that changes to manage the symptoms of menopause can be implemented where reasonable.
  • Raise awareness and training on the effects and symptoms of menopause for managers to be able to sensitively deal with concerns. 

While menopause is not a protected characteristic under discrimination legislation, if an employer treats a woman’s menopause symptoms less seriously than they would a man’s health condition this could amount to sex discrimination or harassment.

Sex discrimination in shared parental pay

The Supreme Court is expected to decide later this year whether it is sex discrimination where an employer pays enhanced maternity pay, but pays shared parental pay to men at only the statutory rate. 

In Hextall v Leicestershire Police, the Court of Appeal ruled in 2019 that this policy is neither directly nor indirectly discriminatory. In doing so, it looked at the public policy reasoning behind giving women maternity pay and concluded that a main factor behind statutory maternity pay existing was recovery from childbirth. The reasoning followed that since men do not go through this same recovery process, they do not need the same level of paternity pay. Accordingly, there is no discrimination. 

Many commentators consider that one of the reasons for the limited uptake in shared parental leave since its introduction is that, whereas enhanced maternity pay is common, shared parental pay is often paid at the much lower statutory minimum. If the Supreme Court disagrees with the Court of Appeal, then employers may need to revisit their policies, and most likely top up shared parental pay for men so that it matches enhanced maternity pay. While some say this would lead to increased expense for employers, this would only be the case if there is such an increased uptake in shared parental leave by men that it is not offset by mothers returning to work earlier. 

Charlie Thompson is senior associate in the employment team at Harbottle & Lewis

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