Sex Discrimination

Protection against sex discrimination has traditionally been something that has been provided to women and the relevant legislation in this area – the Equality Act 2010 (the ‘EA’) – is written to reflect this. However, other than those provisions that obviously apply only to women – such as those relating to pregnancy – regardless of the wording of the legislation men also have the benefit of the protections in the EA. Prior to 2010, the Sex Discrimination Act 1975 was the piece of legislation that dealt with this area.

When does the EA protection apply?

Protection applies from the start of a recruitment process, throughout employment – and any vocational training – an in some cases even beyond the end of an employment contract, for example in a situation where an employer is to provide a reference. During this time a discriminatory act could be committed by the employer, by another employee, by an agent of the employer, or even by a third party, such as a customer, and an employer may still be held responsible.

‘The Act’ also provides protection where someone is intending to, has gone through, or is going through gender reassignment, and it is also unlawful to discrimination against someone because they are in a civil partnership or married. There is no protection for anyone who is single and treated less favourably as a result of this. These provisions apply equally to both men and women.

EA protection is very broad and will apply in most cases. Specifically, ‘workers’ are covered by the legislation, as well as apprentices, officeholders – such as directors – members of partnerships, barristers and policemen and women, as well as many other categories of individuals.

Different types of sex discrimination under the EA

The EA protects against direct discrimination, indirect discrimination, victimisation and harassment.

In order for a claim for direct discrimination to succeed there will need to be:

1. Less favourable treatment because of someone’s sex.

2. A disadvantage or detriment that is the result of that treatment.

3. A ‘comparator’ to compare the treatment against – this must be someone (real or hypothetical) whose life is ‘not materially different’ to that of the complainant, other than being of the opposite sex.

4. Conscious or unconscious sex discrimination – if there is no motive for the conduct then this will be unconscious sex discrimination, which is protected again under the EA.

It does not make a difference to a situation if the person who is behaving in a discriminatory way is of the same sex as the person being discriminated against.

For a claim of indirect discrimination there must be a provision, criterion or practice that is applied equally to both men and women in the workplace – such as keeping certain working hours. However this provision, criterion or practice will only be indirect discrimination where it creates a disadvantage for one sex over the other – for example, if the hours that must be worked are ‘after school’ this might create a disadvantage for women with young kids. The complainant will need to be affected by the provision, criterion or practice, which must not be objectively justifiable.

If the practice can be objectively justified as a proportionate means of reaching a legitimate aim that achieves its aim but doesn’t go further than it needs to, the provision, criterion or practice will not be indirect discrimination. Whether the policy is justifiable will usually be crucial to a case of indirect discrimination.

Victimisation is unlawful where someone is – in good faith – involved with a process related to the provisions of the EA (or the Sex Discrimination Act 1975) concerning sex discrimination and is treated unfavourably as a result. This may be where someone is bringing an action under the legislation, providing information or evidence connected with an action, alleging that the legislation has been contravened or doing anything in relation to the discriminator or any other person under or by reference to the legislation.

Sexual harassment at work is a form of sex discrimination. Unwanted conduct forms the basis of a sex discrimination claim. The effect on the individual will be taken into account when looking at potential sexual harassment, as well as whether it was reasonable for that person to have felt that way. Unwanted conduct that does, or is designed to, violate someone’s dignity or generate an atmosphere that is offensive, humiliating, degrading, hostile or intimidating; and:

a) relates to someone’s sex or the sex of another person;

b) is verbal, non-verbal or physical conduct of a sexual nature; or

c) is less favourable treatment that results from a rejection of conduct in a) or b) than would have been received if there had been no rejection; or

d) relates to gender reassignment that has been done, is being done or intented to be done.

Where there is harassment on more than two occasions by the same party (this could be another employee or a third party, such as a customer) and an employer knows of this but fails to take action to prevent it happening again, the employer may be held responsible for the harassment.

The remedies available

Where sex discrimination is found, an Employment Tribunal can take a number of steps. The Tribunal may recommend that the employer take a certain course of action, make a declaration of the parties’ rights, re-engage or reinstate an unfairly dismissed employee, and award compensation. Compensation is for damage directly caused by the discrimination and the amount that can be awarded is limitless. Loss of earnings (including interest) and loss of future earnings, hospitable employment, injury to health or feelings will all be key in deciding how much compensation should be awarded.

Making a claim

An EA sex discrimination claim should set out ‘clear facts’ that may be used by an Employment Tribunal to establish that the discrimination has taken place. After this it is then up to the employer (or other respondent) to justify the conduct against the person making the claim – to prove that it was not motivated by that person’s sex.

Claims for conduct before 6^th April 2009 – or through that date – where a claim has been lodged with an Employment Tribunal, could be subject to different rules.

Claims for conduct on or before 1 October 2010 should be brought under the EA and previous legislation – the Sex Discrimination Act.

Claims for conduct after 1 October 2010 should be brought under the EA

Where a sex discrimination issue is raised, there is usually a requirement to follow the ACAS Code of Practice on Discipline and Grievance Procedures (www.acas.org.uk) and there are some serious penalties for both employers and employees who don’t follow the Code. For example any compensation an employee receives from an Employment Tribunal may be reduced by up to 25%.

The timing of a claim for sex discrimination is important as this is usually required to be made within three months less one day of the behaviour that is complained about, or where the conduct was ongoing, on the last day of that behaviour or conduct. The claim will be taken to an Employment Tribunal and this body has the power to extend any time limits where it is just and equitable to do so.

Where a sex discrimination complaint is made, an employee is entitled to use a questionnaire to obtain information from an employer about the situation. This should be served before, or within 28 days of, a claim being made to an Employment Tribunal. Employers should take care to answer questionnaires received with some diligence and avoid ambiguous replies, as an Employment Tribunal can infer unlawful discrimination from a questionnaire that is either not returned, or carefully avoids giving any information. If an employer fails to follow any Codes of Practice that should be used in relation to any complaint made, then a Tribunal can also draw an inference of unlawful discrimination from this.