A high court judge has ruled that the government has until Friday lunchtime to explain to the court and the Equal Opportunities Commission (EOC) how it is to remedy a breach of EU law.

As previously reported by HR Zone the EOC brought judicial review proceedings against the government over its implementation of the Equal Treatment Directive, arguing that the national laws were not as tough as the EU rules demanded and that women could lose maternity rights established in UK case law. The directive was implemented through regulations which amended the Sex Discrimination Act.

The EOC was also concerned that the lack of clarity in the scope of the regulations could produce confusion and uncertainty about the extent of their legal rights and obligations for both employers and employees, leading to expensive, stressful and time consuming litigation.

Mr Justice Burton agreed and in his decision accepted there had been a great deal of consultation and communication between the government and the EOC before the regulations came into force in October 2005.

However, he accepted the EOC was unable to persuade the government to alter the regulations in line with its advice. One of the EOC’s statutory duties is to advise on and monitor sex discrimination legislation.

Specific points addressed in the judgment include:

• Provisions on harassment. The regulations do not provide the broad protection envisaged by the directive. For instance, the directive protects women against any unwanted conduct related to their sex which violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. But the regulations give no apparent protection to women who are harassed by clients, even when the employer knows of the problem and could prevent further occurrences. Mr Justice Burton disagreed with this, saying employers are liable for harassment if they fail to take steps to prevent it.




• Pregnant women did not previously have to show that they had been treated worse than they would have been before they were pregnant – the need for, in legal language a so-called ‘comparator’. But under the new regulations they did have to. Women have different needs when they are pregnant, so it does not always make sense for a woman to compare her situation with what would have happened had she not been pregnant. Mr. Justice Burton confirmed that women occupy a special position during pregnancy and maternity leave which in some circumstances requires them to have special protection, such as a risk assessment, which they would not have needed had they not become pregnant.

The Department of Trade and Industry was the responsible for the regulations when they were issued in 2005. Responsibility for equality policy has now shifted to the Department for Communities and Local Government, which is reviewing the judgment.

EOC chairman Jenny Watson said: “This decision is a welcome result for the thousands of vulnerable women who suffer pregnancy discrimination and sexual harassment every year.

“It should also come as good news for employers, who now have a clear understanding of their rights and responsibilities and won’t find themselves tied up in expensive and time-consuming cases seeking clarification of regulations that are incompatible with European legislation. The EOC looks forward to working with the secretary of state and officials to find a suitable resolution.”