The Employment Equality (Sex Discrimination) Regulations 2005
| Jurisdiction | UK Non-devolved |
| Citation | SI 2005/2467 |
| Year | 2005 |
2005 No. 2467
SEX DISCRIMINATION
The Employment Equality (Sex Discrimination) Regulations 2005
Made 5th September 2005
Laid before Parliament 7th September 2005
Coming into force 1st October 2005
The Secretary of State, being a Minister designated for the purposes of section 2(2) of the European Communities Act 19721in relation to discrimination2, in exercise of the powers conferred upon him by that section, hereby makes the following Regulations:
Citation, commencement, extent and interpretation
1.—(1) These Regulations may be cited as the Employment Equality (Sex Discrimination) Regulations 2005 and shall come into force on 1st October 2005.
(2) These Regulations do not extend to Northern Ireland.
(3) The repeal made by regulation 20(2) does not extend to the Isle of Man or the Channel Islands.
(4) In these Regulations “the 1975 Act” means the Sex Discrimination Act 19753and “the 1970 Act” means the Equal Pay Act 19704.
Transitional provisions
2.—(1) The amendments made by regulations 28(3), 29(3), 30(3) and 31(2) do not apply in relation to proceedings where the act complained of took place before 1st October 2005.
(2) The amendment made to section 74 of the 1975 Act by regulation 32 shall not apply in the case of a question served on a respondent before 1st October 2005.
(3) In paragraph (2) “question” and “respondent” shall be construed in accordance with section 74 of the 1975 Act.
Indirect discrimination
3.—(1) In the 1975 Act, in section 1(2), for paragraph (b) (definition of indirect discrimination) substitute—
“(b)
“(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but—
(i) which puts or would put women at a particular disadvantage when compared with men,
(ii) which puts her at that disadvantage, and
(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.”.
(2) In the 1975 Act, in section 3(1), as substituted by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 20015, for paragraph (b) (definition of indirect discrimination against married people) substitute—
“(b)
“(b) he applies to that person a provision, criterion or practice which he applies or would apply equally to an unmarried person, but—
(i) which puts or would put married persons at a particular disadvantage when compared with unmarried persons of the same sex,
(ii) which puts that person at that disadvantage, and
(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.”.
Discrimination on the ground of pregnancy or maternity leave
4. In the 1975 Act, after section 3 (discrimination against married persons in employment field), insert—
“Discrimination on the ground of pregnancy or maternity leave
3A.—(1) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if—
(a)
(a) at a time in a protected period, and on the ground of the woman’s pregnancy, the person treats her less favourably than he would treat her had she not become pregnant; or
(b)
(b) on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably 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.
(2) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if, on the ground that section 72(1) of the Employment Rights Act 1996 (compulsory maternity leave) has to be complied with in respect of the woman, he treats her less favourably than he would treat her if that provision did not have to be complied with in respect of her.
(3) For the purposes of subsection (1)—
(a)
(a) in relation to a woman, a protected period begins each time she becomes pregnant, and the protected period associated with any particular pregnancy of hers ends in accordance with the following rules—
(i) if she is entitled to ordinary but not additional maternity leave in connection with the pregnancy, the protected period ends at the end of her period of ordinary maternity leave connected with the pregnancy or, if earlier, when she returns to work after the end of her pregnancy;
(ii) if she is entitled to ordinary and additional maternity leave in connection with the pregnancy, the protected period ends at the end of her period of additional maternity leave connected with the pregnancy or, if earlier, when she returns to work after the end of her pregnancy;
(iii) if she is not entitled to ordinary maternity leave in respect of the pregnancy, the protected period ends at the end of the 2 weeks beginning with the end of the pregnancy;
(b)
(b) where a person’s treatment of a woman is on grounds of illness suffered by the woman as a consequence of a pregnancy of hers, that treatment is to be taken to be on the ground of the pregnancy;
(c)
(c) a “statutory right to maternity leave” means a right conferred by section 71(1) or 73(1) of the Employment Rights Act 1996 (ordinary and additional maternity leave).
(4) In subsection (3) “ordinary maternity leave” and “additional maternity leave” shall be construed in accordance with sections 71 and 73 of the Employment Rights Act 1996.
(5) Subsections (1) and (2) apply to—
(a)
(a) any provision of Part 2,
(b)
(b) sections 35A and 35B, and
(c)
(c) any other provision of Part 3, so far as it applies to vocational training.”.
Harassment and Sexual Harassment
5. In the 1975 Act, after section 4 (discrimination by way of victimisation), insert—
“Harassment, including sexual harassment
4A.—(1) For the purposes of this Act, a person subjects a woman to harassment if—
(a)
(a) on the ground of her sex, he engages in unwanted conduct that has the purpose or effect—
(i) of violating her dignity, or
(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,
(b)
(b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect—
(i) of violating her dignity, or
(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or
(c)
(c) on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct.
(2) Conduct shall be regarded as having the effect mentioned in sub-paragraph (i) or (ii) of subsection (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect.
(3) For the purposes of this Act, a person (“A”) subjects another person (“B”) to harassment if—
(a)
(a) A, on the ground that B intends to undergo, is undergoing or has undergone gender reassignment, engages in unwanted conduct that has the purpose or effect—
(i) of violating B’s dignity, or
(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, or
(b)
(b) A, on the ground of B’s rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a), treats B less favourably than A would treat B had B not rejected, or submitted to, the conduct.
(4) Conduct shall be regarded as having the effect mentioned in sub-paragraph (i) or (ii) of subsection (3)(a) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.
(5) Subsection (1) is to be read as applying equally to the harassment of men, and for that purpose shall have effect with such modifications as are requisite.
(6) For the purposes of subsections (1) and (3), a provision of Part 2 or 3 framed with reference to harassment of women shall be treated as applying equally to the harassment of men, and for that purpose will have effect with such modifications as are requisite.”.
Amendments to 1975 Act interpretation provisions
6. In section 5 of the 1975 Act (interpretation), in subsection (1)(b) (references to sex discrimination), for “section 1 or 2” substitute “section 1, 2 or 3A”.
Applicants and employees
7.—(1) In the heading to Part 2, for “DISCRIMINATION IN THE EMPLOYMENT FIELD” substitute “EMPLOYMENT FIELD”.
(2) Section 6 of the 1975 Act (discrimination against applicants and employees) is amended as follows.
(3) In the heading, omit “Discrimination against”.
(4) After subsection (2) insert—
“2A It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to subject to harassment—
(a) a woman whom he employs, or
(b) a woman who has applied to him for employment.”.
Terms and conditions of employment during maternity leave
8. In the 1975 Act, after section 6 (discrimination against applicants and employees), insert—
“Exception relating to terms and conditions during maternity leave
6A.—(1) Subject to subsections (2) and (5), section 6(1)(b) and (2) does not make it unlawful to deprive a woman who is on ordinary maternity leave of any benefit from the terms and conditions of her...
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