Equality and Human Rights Commission

Implementing the Gender Directive – 2004/113/EC

Directive 2004/113/EC implements the principle of equal treatment between men and women in the access to and supply of goods and services.

The Directive prohibits sex discrimination in goods and services. This includes:

• Discrimination against men and women
• Discrimination against transsexual people (on grounds of gender reassignment)
• Discrimination for reasons of pregnancy and maternity

The Sex Discrimination Act 1975 already applies to the provision of goods, facilities and services. The Government Equalities Office (GEO) website lists the 'main changes' needed to implement the Directive as follows:

• Extend protection from discrimination on grounds of gender reassignment to the provision of goods, facilities and services.
• Make explicit that sexual harassment, sex harassment and gender reassignment harassment in access to and the provision of goods, facilities, services or premises unlawful.
• Make explicit that less favourable treatment on the ground of a women's pregnancy or maternity in the provision of goods and services is unlawful.
• In relation to financial and insurance products, make clear that where there are proportionate differences in an individual’s premiums and benefits as a result of sex being a determinant factor in risk assessment, then these differences must be based on relevant and accurate data, and this data must be compiled, published and regularly updated.

Impact of the amendments in detail

Sexual Harassment and Harassment

1. The definition of gender harassment is expanded in the new Regulations and now provides for harassment 'related to her sex or that of another person'. You now only have to show the treatment was associated with the sex of the victim or any other person.

2. The legislation thus provides protection in the following scenarios:

• to witnesses of harassment where the harassment of another creates a hostile, degrading environment for them
• unwanted (sexual or bullying) conduct directed at both sexes but which creates an intimidating, hostile, degrading, humiliating, or offensive environment for one sex; for example, where derogatory comments are made about women’s abilities at work to a mixed group
• sexual banter whether or not it is directed at the individual, but which they find offensive
• gender specific derogatory language
• 'environmental' harassment: the display of sexually explicit posters and magazines which are offensive to the individual.

3. Third party sexual/harassment from a customer or client. Employers will be liable for this if they fail to take reasonably practicable (proactive and reactive) steps to protect their employees where sexual/harassment is known to have happened on at least two occasions. The preconditions to liability are arguably in breach of European law.

4. NB The individual's perception counts: the law allows for different perceptions and the fact that some may find offence where others do not. Cases nonetheless depend on whether, in all the circumstances, a reasonable person would have found the conduct offensive, demeaning, etc.

Transgender discrimination

1. The definition of harassment and sexual harassment for transgender discrimination is unaltered and is on the grounds of intention to undergo, undergoing, having undergone gender reassignment. As in point 4 above, the 'reasonableness test' applies.

2. The amendment provides protection in goods, facilities, services and premises (Ss29, 30, 31 SDA), subject to the general exceptions to the SDA.

3. NB There is no protection for transgender discrimination in Education. (There is however protection against trans discrimination under SDA Part 2 Employment Field for vocational training).

Pregnancy or maternity discrimination in goods, facilities and services and employment

1. The Regulations have removed the need for a comparator for pregnancy and maternity-related discrimination. This should make discrimination uniquely associated with pregnancy and maternity easier. Example scenarios: 

• Where a woman needs (but is not allowed) more toilet/rest breaks because she is pregnant;
• Where an employer fails to do a risk assessment when this results in a detriment to a pregnant woman e.g. she has to leave her job/go on sick leave.

2.    The Regulations give greater rights to women whose expected week of childbirth begins on or after 5th October 2008:

• the ability to claim for the non-payment of a discretionary period in the compulsory period of maternity leave ie 2 weeks from the date of childbirth (or 4 weeks for factory employees)
• entitlement to non-cash benefits during the additional as well as the ordinary period of maternity leave (car, laptop, phone etc)