R (Equal Opportunities Commission) v Secretary of State for Trade and Industry: [2007] EWHC 483 (Admin)

QBD: Burton J: 12 March 2007

The claimant, a statutory body set up to promote equality of opportunity between men and women and to work against discrimination and harassment on the ground of gender, when consulted by the defendant Secretary of State concerning the implementation by the United Kingdom of changes to the European Community anti-discrimination regime pursuant to the amendment of Directive 76/207/EEC by Directive 2002/73/EC, responded that his proposed amendments to the Sex Discrimination Act 1975 did not meet the terms of the Directive so as to ensure that English law would be in compliance with it. The claimant also pointed out features of the legislation which tended to be reductive of established interpretation of the sex discrimination regime so as to offend against the doctrine of regression. Following the enactment of the new sections of the 1975 Act by the Employment Equality (Sex Discrimination) Regulations 2005, the claimant sought judicial review of sections 3A, 4A(1)(2) and 6A, contending, inter alia, that the use of the words "on the ground of her sex" in section 4A(1)(a) impermissibly involved an issue of causation into the concept of harassment; that section 4A(2) imported an inappropriate objective test into the definition of harassment; that the legislation failed to implement Directive 2002/73 in not introducing vicarious liability on the part of an employer for discriminatory acts of third parties; that section 3A(1) impermissibly introduced the requirement for a comparator for the purpose of establishing discrimination on the grounds of pregnancy or maternity leave; and that the exceptions from the right to claim discrimination during maternity leave in section 6A involved a reduction in opportunity in relation to a discretionary bonus and in respect of additional leave periods.

BURTON J held:
(1) The provision in section 4A(1)(a) of the Sex Discrimination Act 1975, that harassment of a woman occurred when unwanted conduct was engaged in "on the ground of her sex", while appropriate to sex discrimination, did not comply with the definition of harassment, as unwanted conduct "related to" her sex, set out in article 2(2) of Directive 76/207, whereby harassment was dependent simply on a connection or association with her sex. Harassment would occur, under article 2(2) but not under section 4A, if the effect of denigratory conduct, directed towards another person of either gender, related to sex, but not of a sexual nature, had the effect of creating a humiliating or offensive environment for a woman. As it was not appropriate, because of the need for clarity and certainty, to render section 4A(1) compliant with the amended Directive 76/207 by reading down, it should be recast so as to eliminate the issue of causation.
(2) Under the pre-existing law the test of sex discrimination was properly to be regarded as objective, and thus no question of regression arose in respect of the objective test for harassment in section 4A(2). Accordingly, given the considerable flexibility allowed member states in implementing a Directive, provided the measures necessary to ensure that it was fully effective were adopted, the objective test in section 4A(2) was legitimate.
(3) Since there was nothing in any of the articles inserted by Directive 2002/73 requiring a member state to impose vicarious liability on an employer, or even liability for negligent failure to take steps to prevent harassment, it was difficult to see how an employer could be held liable simply for even knowing failure to take steps to prevent harassment by others, so long as section 4A was to be framed in terms of unwanted conduct engaged in "on the ground of her sex" by the employer.
(4) That section 3A, as the only vehicle for the bringing of a claim of discrimination in the cases of pregnancy and maternity leave, by reference to its imposition of a requirement of a comparator, constituted regression which was not justified by the Directive. As it was not appropriate, because of the need for clarity and certainty, to render it compliant by reading down, section 3A should be recast to remove the conceptual female comparator who was not pregnant or not on maternity leave.
(5) The exclusion by section 6A(1) of a right to claim discrimination in respect of a discretionary bonus during the compulsory period of maternity leave, and the restriction by section 6A(3) and (4) on claims of discrimination in respect of the additional leave period, offended against the doctrine of regression, and, as it was not appropriate to render section 6A compliant by reading down, it should be recast so as not to exclude such claims.

Appearances: Dinah Rose QC and Karon Monaghan (Equal Opportunities Commission, Manchester) for the Equal Opportunities Commission; David Pannick QC and Gerard Clarke (Treasury Solicitor) for the Secretary of State.