The Employment Equality (Sex Discrimination) Regulations 2005

Explanatory Note

(This note is not part of the Regulations)

These Regulations, which are made under section 2(2)(a) and (b) of the European Communities Act 1972 and come into force on 1st October 2005, implement (in Great Britain) Council Directive 2002/73 EC of 23 September 2002 (“the Directive”) and include provision for matters arising out of or relating to such implementation. The Directive is concerned with the principle of equal treatment of men and women as regards access to employment, vocational training and promotion, and working conditions.

The Directive necessitates amendment of the Sex Discrimination Act 1975 (“the 1975 Act”), in particular to reflect the provisions of the Directive which deal with the definition of indirect discrimination, harassment, and genuine occupational requirements, and also necessitates amendments to the 1975 Act making it clear that discrimination on the grounds of pregnancy and maternity leave is unlawful sex discrimination.

Regulation 3 sets out a revised definition of indirect discrimination, on grounds of sex, in those areas with which the Directive is concerned. It also applies the amended definition to indirect discrimination against married persons.

Regulation 4 sets out a definition of discrimination on the grounds of pregnancy and maternity leave.

Regulation 5 sets out a definition of harassment, including sexual harassment, on the grounds of a person’s sex, or on the grounds of gender reassignment, which will apply in the areas with which the Directive is concerned. It also provides that a person may not be treated less favourably because of their submission to or rejection of conduct amounting to harassment.

Regulation 6 makes a consequential amendment.

Regulation 7 makes it unlawful for an employer to subject to harassment an employee or an applicant for employment.

Regulation 8 sets out the extent to which it is discriminatory to deprive a woman of the benefit of her terms and conditions of employment during maternity leave. These provisions do not apply to pay (the payment of money regulated by the contract of employment) as this is dealt with in the Equal Pay Act 1970 – see regulation 36.

Regulation 9 modifies the genuine occupational qualification exception which allows gender reassignment discrimination in cases where the jobholder is liable to be called upon to perform intimate physical searches pursuant to statutory powers.

Regulation 10 makes it unlawful for a principal to subject a contract worker to harassment.

Regulation 11 contains an expanded definition of “work at an establishment in Great Britain”.

Regulation 12 makes a consequential amendment.

Regulation 13 extends the 1975 Act to office holders.

Regulation 14 makes it unlawful for partnerships to subject to harassment partners or applicants for partnership and removes the exception allowing partnerships to discriminate in the provision of death or retirement benefits.

Regulation 15 makes it unlawful for trades unions to subject to harassment members or applicants for membership and removes the exception allowing trades unions to discriminate in the provision of death or retirement benefits.

Regulation 16 makes it unlawful for qualifying bodies to subject persons to harassment.

Regulation 17 amends the provisions relating to vocational training and makes it unlawful for training providers to subject persons to harassment.

Regulations 18 and 19 make it unlawful for employment agencies and the Training Commission and other such bodies to subject persons to harassment.

Regulation 20 replaces section 19 of the 1975 Act which permits certain discrimination in relation to employment and qualifications for purposes of an organised religion where the discrimination is necessary for limited religious reasons. The regulation also repeals section 6 of the Priests (Ordination of Women) Measure 1993 (No. 2).

Regulations 21 and 26 provide that, where there has been a relationship in which certain acts of discrimination, or harassment, would have been unlawful, it is also unlawful to subject a person to harassment after that relationship has ended. Regulation 21 applies to relationships which are governed by Part 2 of the 1975 Act (for example, an employment relationship), and regulation 26 applies to relationships to which certain provisions of Part 3 of the 1975 Act apply (for example, the relationship between a barrister and pupil).

Regulation 22 makes it unlawful for institutions of further and higher education to discriminate in respect of selection arrangements and to subject persons to harassment.

Regulation 23 removes the exception allowing discrimination in physical education training courses.

Regulations 24 and 25 make it unlawful for barristers and advocates, or their clerks, to subject to harassment a pupil or a tenant, or a person applying to be a pupil or tenant.

Regulation 27 makes it the duty of the Equal Opportunities Commission (“the EOC”) to work towards the elimination of harassment (in addition to its existing duty in respect of discrimination), adds harassment to the matters which can be the subject of a code of practice and adds harassment to the matters in respect of which the EOC can require information for the purposes of a formal investigation.

Regulation 28 adds harassment to the claims which may be presented to an employment tribunal. It also provides that discrimination or harassment claims made by or against barristers and advocates may be presented to an employment tribunal.

Regulation 29 ensures that the burden of proof in harassment claims heard in the employment tribunal is the same as that for discrimination claims heard there.

Regulation 30 adds harassment to the claims which may be presented to a county court.

Regulation 31 ensures that the burden of proof in harassment claims heard in the county court is the same as that for discrimination claims heard there, in areas with which the Directive is concerned.

Regulation 32 ensures that, in certain cases, respondents must reply to a claimant’s preliminary questions within eight weeks of being served with them.

Regulation 33 explains the meaning of certain expressions used in the Regulations and inserted in the 1975 Act.

Regulation 34 removes the exception allowing discrimination in admission to cadet forces.

Regulation 35 extends the Equal Pay Act 1970 to office-holders.

Regulation 36 amends the Equal Pay Act to set out the extent to which it is discriminatory to pay a woman less than she would otherwise have been paid due to pregnancy or maternity leave.

A Regulatory Impact Assessment of the effect these Regulations will have on business costs, and Transposition Notes showing how Council Directive 2002/73/EC has been implemented in Great Britain, are available to the public, free of charge, from the Women and Equality Unit, 3rd Floor, Department of Trade and Industry, 1 Victoria Street, London SW1H 0ET. Copies of each have also been placed in both Houses of Parliament.