The Equal Opportunities Commission (EOC) has started judicial review proceedings over the way the government has implemented the European Equal Treatment Amendment Directive.

Although welcoming the directive, the EOC argues that the regulations the government has introduced to implement it don’t go far enough and could mean the loss of rights which have been given to women through case law in the UK.

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

EOC chairman Jenny Watson said: “It is crucial that employers understand what is expected of them and that women enjoy the full protection of the law. This is why we have filed this review. The EOC believes that certain aspects of the Equal Treatment Directive have not been implemented effectively and that the law is unclear. This Government has taken important steps to end these persistent and stubborn forms of discrimination, and it would indeed be unfortunate if these regulations remained unchallenged.”

In particular, the EOC is asking the court to clarify:

• The definition of harassment. The EOC argues that the regulations’ definition is too narrow and doesn’t give the protection envisaged in the directive. For instance, the EOC argues that the directive gives protection against harassment by clients – which, it says, is a particular problem in the hotel and restaurant sector – but the regulations don’t.




• The EOC says the new regulations make women’s rights during maternity leave unclear. For instance, Women and their employers now do not know whether a woman is protected if she is not consulted about a change to her job while on maternity leave.




• Pregnant women did not previously have to show that they had been treated worse than they would have been before they were pregnant – the legal ‘comparator’. But under the new regulations they may have to. The EOC argues that 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.

The case is scheduled for a two-day hearing on February 27 and 28.