28 April 2008, 14:55 PM
  • Confused over new laws governing maternity leave? Tread carefully says legal expert Mark Hatfield

With key changes to the law governing sex discrimination and maternity rights taking effect this month, retailers are urged to get to grips with their staff’s rights.

“It’s vital employers are up to speed with these significant changes which will require them to review their policies and practices,” says Mark Hatfield, employment law partner at leading law firm Mace & Jones. “The difference in the treatment of Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML) for terms and conditions will be removed,” he explains. “It could be significant, particularly when coupled with more women taking AML with the extension of maternity pay to 39 weeks and ultimately 52.” The other key difference is for employers who provide benefits based upon service, but have excluded time spent on AML, as this will now need to change.

Further important alterations may affect the general attitude in the workplace. “Harassment will become unwanted conduct ‘related to her sex’, instead of ‘on the grounds of sex’,” explains Mr Hatfield. “This new definition will cover a wider range of conduct as the harassment is only required to be associated to the victim’s gender, not caused by it. In practice, we would be surprised if this changed employers’ practices, but it will limit our ability to run certain arguments as a defence.”

Employers will now also be liable for sexual harassment of staff by people who are not fellow employees. “This will apply where the employer knows the employee has been subject to harassment on at least two occasions by someone who is not a work colleague and has failed to take such steps as would have been reasonably practicable to prevent members of the public and service users harassing the employee,” he explains. “Importantly, the three incidents of harassment only need to be to the same employee, not by the same person. Once an employee has been harassed twice, employers now have a duty to positively take all practicable steps, failing which discrimination will be found. This could be very tough in practice and increases the importance of fully dealing with employee complaints about non-employees.”