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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Equal Opportunities Commission v Secretary of State for Trade & Industry [2007] EWHC 483 (Admin) (12 March 2007) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2007/483.html Cite as: [2007] ICR 1234, [2007] 2 CMLR 49, [2007] IRLR 327, [2007] ACD 74, [2007] EWHC 483 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
EQUAL OPPORTUNITIES COMMISSION |
Claimant |
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- and - |
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SECRETARY OF STATE FOR TRADE AND INDUSTRY |
Defendant |
____________________
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr David Pannick QC and Mr Gerard Clarke (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 27 & 28 February 2007
____________________
Crown Copyright ©
MR JUSTICE BURTON:
"(a) to work towards the elimination of discrimination
(aa) to work towards the elimination of harassment that is contrary to … [the 1975] Act
(b) to promote equality of opportunity between men and women generally …
(c) to keep under review the working of [the 1975] Act and the Equal Pay Act 1970 and, when they are so required by the Secretary of State or otherwise think it necessary, draw up and submit to the Secretary of State proposals for amending it."
i) "On the ground of"
This formed the major thrust of Miss Rose QC's able and convincing submissions, so convincing that in the event Mr Pannick QC buckled under them, as will be seen. There is, as a result of paragraph 5 of the Regulations, a new s4A of the 1975 Act dealing with harassment. The new s4A(1) reads as follows:
"For the purposes of this Act, a person subjects a woman to harassment if –
(a) on the ground of her sex, he engages in unwanted conduct that has the purpose or effect -
(i) of violating her dignity, or
(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her
(b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect –
(i) of violating her dignity, or
(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or
(c) on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct."
Miss Rose's submission is that, as to the first form of harassment, characterised by s4A(1)(a), the use of the words "on the ground of her sex" must necessarily, and impermissibly, involve the issue of causation, or – as I put it in argument – of ratiocination, by reference to the inevitable investigation of 'by reason of' (see, in the context of the law of discrimination, by reference to the identical words in s1 of the 1975 Act, Nagarajan v London Regional Transport [1999] ICR 877 particularly at 886 E-F) and 'the reason why issue" (Shamoon v Chief Constable of the RUC [2003] ICR 337 at para 8).
Such importation of causation into the concept of harassment is, she submits, inapt. Harassment as defined by Article 1.2.2 of the Directive does not require or allow for it:
"(2) For the purposes of this Directive, the following definitions shall apply …
- harassment: where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment,"
It is this association with sex, not causation by it, which defines harassment.
ii) "On the ground of her sex"
The further point is made by Miss Rose (which, as stated above, inevitably blends with the first point) that, as formulated by the subsection, the unwanted conduct has to be by reason of, or on the ground of the complainant's sex, whereas the definition of harassment at Article 1.2.2, as set out above, is by reference to "unwanted conduct related to the sex of a person"; i.e. a complainant may be harassed by conduct which is directed at a man or another woman.
iii) The objective test
Miss Rose refers to s4A(2), which qualifies the newly formulated complaint of harassment in s4A as follows:
"(2) Conduct shall be regarded as having the effect mentioned in sub-paragraph (i) or (ii) of subsection (1)(a) or (b) only if, having regard to al the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect."
She complains that this imports what she submits to be an inappropriate objective test into the definition of harassment.
iv) Employers' Liability for Third Parties
The House of Lords in Pearce v Governing Body of Mayfield Secondary School [2003] ICR 937 made it entirely clear, in respect of sex discrimination under s1 of the 1975 Act, overruling Burton v De Vere Hotels Ltd [1997] ICR 1, that an employer is not vicariously liable for discriminatory acts or omissions of a party such as a customer, client, contractor or visitor. It also made clear that it was necessary to show that the employer himself had discriminated, and that consequently failure to take adequate steps was insufficient (see e.g. paragraphs 29, 101 of the judgment).
She submitted that the Directive was aimed at eliminating discrimination in the workplace, and that the legislation failed to implement the Directive in not introducing or enabling such liability.
v) The comparator in discrimination on grounds of pregnancy and maternity leave
For the purpose of this summary I shall refer only to pregnancy, although the same argument applies mutatis mutandis in respect of maternity leave. Miss Rose submits that it is impermissible to have introduced in legislation the requirement for a comparator, albeit not a male comparator but a non-pregnant female comparator, for the purpose of establishing discrimination on grounds of pregnancy. She relies upon the judgments in Webb v EMO Air Cargo (UK) Ltd by the European Court [1994] ICR 770 ("Webb No 1"), especially at paragraphs 24 to 28 of the judgment of the Court, and by the House of Lords [1995] ICR 1021 ("Webb No 2"), especially at 1027 A-C, and of the European Court in Gillespie v Northern Health Board [1996] ICR 498, particularly at paragraphs 16 to 17 of the judgment of the Court. The judgment in Gillespie addressed the issue of pregnant women at paragraph 17, as being "in a special position which requires them to be afforded special protection, but which is not comparable either with that of a man or that of a woman actually at work". S3A(1) of the 1975 Act, introduced by paragraph 4 of the Regulations, reads as follows:
"In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if –
(a) at a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably than he would treat her had she not become pregnant; or
(b) on the ground that the woman is exercising or seeking to exercise or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably than he would treat her if she were neither exercising nor seeking to exercise and had neither exercised nor sought to exercise, such a right."
Miss Rose further submitted that, unless it was intended that there would still be a remedy for a woman complaining of discrimination by reference to pregnancy or maternity leave under s1 of the 1975 Act, as previously, in parallel with the new right under s3A, then the new section would also offend against the principle of regression, articulated in the Directive - as is common - in Article 1.8e.2:
"The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by member states in the fields covered by this Directive."
Mr Pannick, in his submissions in response, confirmed that it was not intended that s1 should remain available in parallel, but that s3A should be the only route by which a claim for discrimination by reference to pregnancy/maternity leave can now be made.
vi) The exceptions during maternity leave
S6A, introduced by paragraph 8 of the Regulations, specifies a series of exceptions from the right to claim discrimination during maternity leave. It is common ground that there is no right to claim discrimination if full pay is not received during maternity leave, by reference to the European Court decision in Gillespie. It is also common ground that, if this new list of exemptions involves a reduction in the opportunity of a complainant on maternity leave to claim discrimination, then such would offend against the principle of regression. Miss Rose has submitted that there are two respects in which there is such regression, and thus a failure lawfully to implement the Directive:
a) The first is by reference to the decision of the European Court in Lewin v Denda [2000] IRLR 67 ("the Denda point"). There are three periods of maternity leave. The first two weeks ("compulsory leave") arise by reference to s72(1) of the Employment Rights Act 1996 ("the 1996 Act"), being a period during which a woman is prohibited from working: the next 24 weeks, totalling the period up to 26 weeks, governed by s71(1) of the 1996 Act: and then what is now a further 26 weeks, by reference to s73(1) of the 1996 Act, being "additional maternity leave".
By s6A(7) of the 1995 Act, ordinary leave is defined as including compulsory leave.
The new s6A(1) reads as follows:
"Subject to subsections (2) and (5), section 6(1)(b) and (2) does not make it unlawful to deprive a woman who is on ordinary maternity leave of any benefit from the terms and conditions of her employment relating to remuneration."
Miss Rose submits that this would exclude a claim for discrimination by a claimant complaining that, during her compulsory leave period, she was deprived of a discretionary bonus, a claim which was held to be justiciable in Denda.
b) The additional maternity leave point
With the exception of the Gillespie type claim for full pay, to which I have referred above, there is no inhibition in the new legislation on claims for discrimination in respect of the ordinary leave period (subject to the point in (a) above). There is however, by virtue of s6A(3) and (4), a substantial limit on claims for discrimination that can be made in respect of the additional leave period. Those subsections read as follows:
"(3) Subject to subsections (4) and (5), section 6(1)(b) and (2) does not make it unlawful to deprive a woman who is on additional maternity leave of any benefit from the terms and conditions of her employment.
(4) Subsection (3) does not apply to –
(a) benefit by way of maternity-related remuneration
(b) the benefit of her employer's implied obligation to her of trust and confidence, or
(c) any benefit of terms and conditions in respect of –
(i) notice of the termination by her employer of her contract of employment,
(ii) compensation in the event of redundancy,
(iii) disciplinary or grievance procedures, or
(iv) membership of a pension scheme."
There are certain claims in respect of allegedly discriminatory conduct which Miss Rose points out are thus, by virtue of the exclusive nature of s6A(4), ruled out in respect of the additional leave periods, which are permitted during the ordinary leave period. She relies upon a decision of the European Court, Land Brandenburg v Sass [2005] IRLR 147 ("Sass"), as prohibiting such a distinction.
"Although Member States are free to choose how a Directive is implemented, they must adopt in their national legal systems all the measures necessary to ensure that the Directive is fully effective, in accordance with the objective which it pursues: Von Colson v Land Nordrhein – Westfalen [1984] ECR 1891 at 1906-7, paragraphs 15 and 18. It is inherent in Article 249 EC, and is clear from Von Colson and later authorities, that a Member State is not required to copy out the exact wording of the Directive. It has considerable flexibility in implementation, provided that the requisite result is achieved."
There are other issues to be addressed, namely certainty, clarity, purposive interpretation and the effect on third parties, to which I will return.
(i) "On the grounds of"
"In any circumstances relevant for the purposes of any provision of this Act … a person discriminates against a woman if –
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man."
"Harassment related to the sex of a person and sexual harassment are contrary to the principle of equal treatment between women and men."
"Member States may provide, as regards access to employment including the training leading thereto, that a difference of treatment which is based upon a characteristic related to sex shall not constitute discrimination where … such a characteristic constitutes a genuine and determining occupational requirement …"
However it is clear that discrimination, as opposed to harassment, is there being referred to, and that "based on" implies causation, and the use of the words "characteristic related to sex" are being used in a manner such as, rather as in relation to s3A of the Disability Discrimination Act referred to above, to expand the causation.
"Harassment and sexual harassment within the meaning of this Directive shall be deemed to be discrimination on the grounds of sex and therefore prohibited."
This was in fact relied upon by both sides. I am satisfied that it means, and Mr Pannick did not in the event vigorously contend against this, that harassment, however itself defined, is here to be deemed to be discrimination and hence prohibited, but that the provision does not thereby assimilate the two different definitions.
"Harassment related to the sex of a person and sexual harassment are contrary to the principle of equal treatment between women and men: it is therefore appropriate to define such concepts and to prohibit such forms of discrimination. To this end it must be emphasised that these forms of discrimination occur not only in the workplace but also in the context of access to employment …"
Once again, this is relied upon by both sides. Miss Rose refers to the emphasis which is thus placed upon careful definition, which then follows in Article 1.2.7, and I am again satisfied that this Recital simply means that harassment, as defined, is, like direct and indeed indirect discrimination, as defined, a form of discrimination which is to be prohibited.
"1a. Sexual harassment shall be deemed to be discrimination on the grounds of sex at the workplace when an unwanted conduct related to sex takes place with the purposes or effect of …"
Miss Rose relied upon the fact that there was the change between the draft proposal and the eventual Directive, resulting in the careful definitions which I have recited.
"Member States' broad discretion to the manner of implementation is circumscribed not just by the need to achieve the required result but also by the principle of legal certainty."
At paragraph 56, he palliates this to an extent by saying that the further authorities of the European Court there cited:
"… show that if the legal position is not sufficiently precise and clear, as where there has been no specific implementing measure or only an inadequate implementing measure, a Member State cannot plug the gap by reliance on the obligation of the national courts to interpret national law compatibly with Community obligations. It does not follow, however, that where detailed implementing measures have been adopted, it is impermissible to have regard to the interpretative obligation of the national court when determining whether the national measures comply with the Directive and are lawful."
"A comparison of the cases of persons of different sex or marital status under s1(1) or 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
i) Just as there is a limit on the amount of reading down that can be done by way of interpreting statutes to render them compliant with the European Convention of Human Rights pursuant to s3(1) of the Human Rights Act 1998 (see e.g. in Re S [2002] AC 291 per Lord Nicholls at 313 paragraphs 38-39, and in Sheldrake v DPP [2005] 1 AC 264 per Lord Bingham at 303 paragraph 28), so too there must be a limit to purposive interpretation where what is in fact occurring is rewriting or amendment, rather than simply reinterpreting words or implying additional words in.
ii) Mr Pannick's suggstion does not only involve transposition of words into a different place in the statute, but, further, interpreting those words differently from how, on binding House of Lords authority, they fall to be interpreted in a different section within the same Act. Clarity and certainty, for which she refers to Richards J in Amicus, are the more essential in a statute which has to be interpreted by those in the workplace, often employees or small employers without easy access to legal advice.
iii) In any event, she submits that, even as formulated or proposed, the end is not achieved. The words, even repositioned, and even "purposively" interpreted, are not going to assist. What will be proscribed will be the engaging in unwanted conduct that has the proscribed purpose or effect "on the ground of her sex". But on the one hand this may be too wide and on the other too narrow. What might thus be rendered apparently discriminatory could be conduct which had nothing to do with sex at all. If, for example, an employee were to produce a weapon at work, it might be asserted that on grounds of her sex a female employee was more frightened than a man. But that would not be conduct related to sex within the Directive, but conduct of an objectionable, because violent or frightening, nature. Similarly there might be conduct which did relate to sex yet could not be said to have the purpose or effect on the ground of sex of creating an offensive environment; if, for example, there were conduct denigrating a fellow male employee in some way related to his sex (though not amounting to conduct of a sexual nature falling within s4A(1)(b)) then that ought to – but would not – trigger a claim by a woman complainant if, as a result of that conduct, her environment were shown to have been rendered offensive.
"It is irrational for the Secretary of State to make or to maintain regulations for the purposes of implementing the Directive which he concedes to be incompatible with the Directive on their ordinary construction, and which he concedes can be read compatibly with the Directive only by a strange construction which would not be evident to, amongst others, employers or employees reading the legislation."
I did not rule on that amendment, which was simply left on the table, because it appeared to me that, if she was right in that submission, then the proper course would be to conclude that such purposive interpretation could not and should not save the legislation, rather than to address any question of Wednesbury unreasonableness.
(ii) On the ground of her sex
(iii) The objective test
"A Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and method."
"54. The Secretary of State contends that the European Commission's Code of Practice supports the test adopted by the … Regulations. The Code indicates at paragraph 2 that conduct is unacceptable if it is "unwanted, unreasonable and offensive to the recipient". This supports a test which requires the conduct complained of to be objectively unreasonable as well as being offensive to the recipient.
55. It may well be that in real, as opposed to hypothetical, cases, tribunals will be very slow to find that the perception of a complainant is unreasonable, but it would be wrong to elevate the complainant's perception to the status of the sole and determinative issue in the case. If this were done, tribunals would face the invidious task of having to determine whether a claimed perception was genuine."
"(3) The ultimate judgment, sexual discrimination or no, reflects an objective assessment by the tribunal of all the facts. That said, amongst the factors to be considered are the applicant's subjective perception of that which is the subject of complaint and the understanding, motive and intention of the alleged discriminator. Thus, the act complained of may be so obviously detrimental, that, disadvantageous (see Insitu [1995] IRLR 4) to the applicant as a woman by intimidating her [or] undermining her dignity at work, that the lack of any contemporaneous complaint by her is of little of no significance. By contrast she may complain of one or more matters which if taken individually may not objectively signify much, if anything, in terms of detriment. Then a contemporaneous indication of sensitivity on her part becomes obviously material as does the evidence of the alleged discriminator as to his perception. That which in isolation may not amount to discriminatory detriment may become such if persisted in notwithstanding objection, vocal or apparent. … By contrast the facts may simply disclose hypersensitivity on the part of the applicant to conduct which was reasonably not perceived by the alleged discriminator as being to her detriment – no finding of discrimination can then follow."
(iv) Third Party Liability
"Nevertheless, it might be argued, on appropriate facts, that an employer should take steps to protect an employee from third-party actions, which provide an offensive working environment for employees, in respect of which the employer might have some degree of control, and in such a case liability might arise if an employer fails to do so. So, on appropriate facts, the harassment provisions in the [1975 Act] might be interpreted so that where an employer knowingly fails to protect an employee from, for example, repetitive harassment by a customer or a supplier, the employer is "subjecting the employee to harassment"."
"Adopting this approach does not necessarily exclude the possibility that an employer could be held liable on appropriate facts for the conduct of, for example, a supplier or customer (or, more accurately, held liable for the violation of dignity or unwelcome working environment brought about by such conduct). It might be the case that an employer could be held liable for failing to take action where there is a continuing course of offensive conduct, which the employer knows of but does nothing to safeguard against. The employer could be responsible for failing to act, albeit not responsible for the third party's actions in themselves. By contrast, fixing an employer with liability arising from a single act by a third party could go too far."
"In this context, employers and those responsible for vocational training should be encouraged to take measures to combat all forms of sexual discrimination and, in particular, to take preventive measures against harassment and sexual harassment in the workplace, in accordance with national legislation and practice."
"Member States shall encourage, in accordance with national law, collective agreements or practice, employers and those responsible for access to vocational training to take measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment at the workplace."
Pregnancy/Maternity Leave Discrimination
i) European discrimination law is still based on comparison. The words of Article 1.2.7, in expanding the nature of the relevant discrimination, define it so:
"Less favourable treatment of a woman related to pregnancy or maternity leave … shall constitute discrimination within the meaning of this Directive."
Miss Rose however refers to Recital (12):
"The Court of Justice has consistently recognised the legitimacy, in terms of the principle of equal treatment, of protecting a woman's biological condition during and after pregnancy. It has moreover consistently ruled that any unfavourable treatment of women related to pregnancy or maternity constitutes direct sex discrimination. … The preamble to Directive 92/85/EEC provides that the protection of the safety and health of pregnant workers … should not involve treating women who are on the labour market unfavourably nor work to the detriment of Directives concerning equal treatment for men and woman."
ii) Mr Pannick emphasises that, once again, it is only the cases which he describes as being on the margin which will cause any controversy, and again he deprecates the use of hypothetical examples when the law has not yet been tested. There would be no dispute that a woman dismissed (Webb, Brown v Rentokil [2998] ECR 1-4185, New Southern Railway Ltd v Quinn [2006] IRLR 266) or deprived of seniority (Herrero v Instituto Madrileno de la Salud [2006] IRLR 296) or of a start date (Mahlburg v Land Mecklenburg – Vorpommen [2000] ECR 1-00549) or of an appraisal (Caisse Nationale D'Assurance v Thibault [2998] IRLR 399), by reason of pregnancy or being on maternity leave, would be entitled to recover within s3A.
iii) Mummery LJ, in Madarassy v Nomura International plc [2007] EWCA Civ 33 at paragraphs 118-9 refers to the value of comparators:
"118. The submission that a hypothetical male comparator is always irrelevant in cases of alleged pregnancy discrimination is incorrect. The mere fact that a tribunal compared Ms Madarassy's treatment with that of a hypothetical male comparator does not disclose an error of law in this case. It is necessary to take account of the factual nature of the particular allegation. As is clear, for example, from Webb v. EMO, there is no place for a hypothetical male comparator in the case of dismissal of a female employee for becoming or being pregnant.
119. It does not follow, however, that it is wrong for an employment tribunal to make a comparison with a hypothetical male comparator for the purpose of determining whether pregnancy or some other reason was the ground for the particular treatment of a pregnant female employee. As explained earlier, two routes are open to the tribunal and both of them are legitimate. The first route is to identify the attributes of a hypothetical comparator. The second is to go straight to the question why the complainant was treated as she was. There was no error of law on taking the first route of the hypothetical comparator."
i) By reference to the case of Hardman v Mallon t/a Orchard Lodge Nursing Home [2002] IRLR 516. This was a case in which an employer failed to carry out a risk assessment. The EAT overturned the decision of an employment tribunal that the claimant was not discriminated against on grounds of sex by virtue of an employer's failure to carry out a risk assessment when she was pregnant, by reference to the reasoning that the claimant was not treated less favourably than the employer treated or would treat a man, since the employer had not produced risk assessments in respect of any of its employees, regardless of their sex. The EAT also concluded that there would have been the same defect if the Tribunal's comparison had been with a non-pregnant female employee. Mr Pannick does not disagree with the result in that case. He submits however that the same result could be reached compatibly with s3A, by reference to the requirements of the Pregnant Workers Directive, Council Directive 92/85/EEC. By virtue of Article 4, an employer must assess the risks to the safety or health of a pregnant worker and it must also, by Article 5, take action further to the results of the assessment. Thus, by reference to s3A, the employer would be treating her less favourably than he would treat her had she not become pregnant, if he failed to comply with the lawful requirements of the Directive, for the comparison would then be between unlawful treatment of her now she is pregnant and lawful treatment of her had she not been pregnant.
ii) This approach appears in a second Fact Sheet issued by the Women and Equality Unit in October 2006, relating to discrimination on the grounds of pregnancy and maternity leave in the employment field. After pointing out (at page 3) that a woman is "required" to compare the treatment complained of with how she would have been treated had she not been pregnant or on maternity leave, it continues:
"However this does not mean that it is never unlawful to treat her in the same way as if she had not been pregnant. The comparison envisaged by section 3A(1) is with the same woman who is not pregnant. A woman is entitled to additional employment rights which provide special protection during pregnancy, such as the right to an individual health and safety risk assessment. Thus sometimes treating a woman in the same way as she would have been treated had she not been pregnant – for example, not carrying out a risk assessment – will be unlawful."
iii) Miss Rose also refers to the hypothetical case of a pregnant employee who, as a result of her pregnancy, finds herself having to go to the toilet every hour, whereas if, and indeed when, she was not pregnant, she would not have had to, and did not, go to the toilet more than once or twice a day. The answer given in paragraph 45(1) of the Defendant's Summary Grounds was that "a woman in such a case could argue that she was in fact being unfavourably treated by comparison with a non-pregnant women because it was only her pregnancy which caused her to need more frequent toilet breaks than non-pregnant women and so would succeed in a claim on a comparator approach".
"16. It is well settled that discrimination involves the application of different rules to comparable situations or the application of the same rules to different situations."
(vi)(a) The Denda Point
"Discretionary bonuses are covered by the SDA, whereas contractual bonuses fall within the EPA.
Whether discretionary or contractual, a bonus should be paid for work done or attendance prior to maternity leave, and following the woman's return, and should include payment for the two-week period of compulsory maternity leave (see EPA section 1(2)(e)."
(vi)(b) Discrimination during the additional maternity leave period
"47. As regards the judgment in Boyle and others it must be held that, contrary to the contentions of the Commission, that judgment does not in any way prejudge the answer to the question referred in the present case since Boyle concerned additional leave granted by an employer rather than statutory leave."
"Accordingly, if a national court reaches the conclusion that the maternity leave provided for … is such statutory leave intended to protect women who have given birth, the whole of that leave must be counted towards the qualifying period to be completed in order to be classified in a higher salaried grade, to prevent a woman who has taken such leave from being placed in a worse position because of her pregnancy and her maternity leave, than a male colleague who started work in the former GDR on the same day as she did."
Conclusion
i) In the DTI Consultation Document of March 2005 prior to implementation of the Directive, "Updating the Sex Discrimination Act", at paragraphs 42-43, the need for promotion of "clarity and certainty of women's rights and employers' responsibilities during pregnancy and maternity leave" was emphasised, as was the existing lack of clarity in this area of the law, and, at paragraph 155 and the Summary Table, "legal clarity, including implementation of existing ECJ case law across Member States" was said to be an "overarching benefit" of the law.
ii) In the second Fact Sheet of October 2006 the 1975 Act was said to have made "the position clear" in relation to the prohibition of discrimination on the grounds of pregnancy and maternity leave in the employment field. The passage explaining the applicability (or otherwise) of the comparator referred to in paragraph 43(ii) above may perhaps be said not to have succeeded in that regard.
i) S4A(i)(a) should be recast so as to eliminate the issue of causation and to facilitate the claims which may be capable of being made as referred to in paragraphs 29 and 36-7 above.
ii) S3A should be recast so as to eliminate the statutory requirement for a comparator who is not pregnant or who is not on maternity leave.
iii) S6A should be recast so as to provide that claims which are permitted by virtue of Denda and Sass should not be excluded.