A snapshot of the Sex Discrimination Law Review

The Fawcett Society recently published its analysis of the efficacy of sex discrimination law in the UK (“the Report”). Whilst acknowledging the efforts made in this area to date, the Report goes on to identify a number of areas in which significant reform is still required. We identify the points likely to be of most interest to employers below.

Bring back third party harassment provisions!

Cast your mind back to the old “three-strikes and you’re out rule” whereby employers were liable for harassment of their employees by third parties (such as customers or clients), provided that the unwanted conduct had taken place on at least two other occasions. Employers had a defence under section 40 of the Equality Act if they could show that they were unaware of the alleged harassment or had taken reasonable steps to try and prevent it.

The Report suggests bringing section 40 back into force with the amendment that employees may bring a claim following a single act of harassment by a third party.

The reason the provision was repealed in 2013 was because, at the time, the Government considered section 40 an “unnecessary regulation introduced without any real or perceived need.” The Government also bowed down to employers’ concerns that they had no easy way of controlling the behaviour of third parties. It is therefore difficult to see how reducing the trigger for section 40 claims to one instance of harassment could ever overcome such criticism again.

Bring back equal pay questionnaires!

It was estimated that 9,000 – 10,000 businesses were previously required to complete the questionnaires and each questionnaire took on average of 5-6 hours to complete, so the very mention of bringing them back may send a shudder down the spine of any HR professional.

Unconvinced as to the effectiveness of the current informal question and answer process between employer and employee, the Report recommends bringing back tribunals’ power to draw an adverse inference should employers refuse to respond to a statutory questionnaire, or deliberately provide inadequate or incomplete responses.

Improve family friendly rights

The Report recommends that all employees should have “day one” rights to statutory maternity, paternity, adoption and shared parental pay. It also recommends that the current flat rate of pay whilst on maternity, adoption or shared parental leave is increased to reflect the equivalent of a real living wage for 36 hours or more.

For paternity leave, the Report suggests increasing statutory paternity leave to six weeks, which may be taken any time in the first year after birth and paid at 90% of the employee’s earnings per week.

Pregnancy and maternity discrimination

The Report highlighted that 54,000 pregnant or working mums were either made redundant or felt pressurised to leave their jobs each year and called for the current time limits for bringing pregnancy or maternity discrimination claims to be extended to six months.

The Report also recommends that pregnancy, maternity, marriage and civils partnerships are added as protected characteristics in harassment claims.

Greater pay transparency

Tribunals currently have the power to order equal pay audits should an employer commit an equal pay breach but the amount of orders made are low. The Report recommends that tribunals order equal pay audits as standard and mandatory audits are carried out every three years for employers with 250 or more employees.

The Report describes the gender pay gap as “stubbornly closing” and calls for proper enforcement mechanisms if the Gender Pay Gap Regulations are to have any impact. In the vein of proposed enforcement strategy, the Equality and Human Rights Commission’s consultation (Closing the Gap: Enforcing the Gender Pay Gap Regulations) closed on 2 February 2018.

The EHRC’s consultation proposes a blended approach to enforcing compliance with the reporting regime, starting with an informal resolution stage. EHRC also proposes the use of formal agreements and court orders to secure compliance. In the event of non-compliance, the EHRC suggests that it should have the power to apply to the courts for the issue of unlimited “level 5” fines.

It remains to be seen whether the EHRC would ever have the resources required to continuously tackle employers’ failure to comply with their reporting obligations. It is also unclear whether the EHRC even has the power to take action against employers in the first place.

The EHRC refer to their powers under section 20 of the Equality Act 2006, which relates to enforcement action due to “unlawful acts” (i.e. acts contrary to the Equality Act 2010). Employers’ obligations under the Equality Act 2010 may properly be described as prohibitive in nature, (not to discriminate) but does the Equality Act 2010 go as far as compelling employers to comply with the Gender Pay Gap Regulations? Arguably it does not but we will have to wait and see whether this issue is clarified in the consultation outcome. Until then, pressure on employers to report and correct any gender pay gap issues continues to flow from more indirect means.

Following Carrie Gracie’s resignation as BBC’s China Editor for in her words, the “secret and illegal” culture of unequal pay at the BBC, BBC Today’s presenter John Humphrys together with several other male presenters at the organisation have offered to take pay cuts to match their female counterparts. As admirable as these offers may be, it is likely that it will do nothing to quell the concerns of many female presenters at the BBC who will want the BBC to take the lead on any corrective measures, not the employees themselves. Watch this space.