Overview of sex discrimination 

The Sex Discrimination Act 1975 (SDA) outlaws discrimination in the workplace on the grounds of sex, marital status, civil partnership status and gender reassignment. It covers job selection, training, promotion, work practices and dismissal.  

Who is liable?

As the employer, it is your duty to ensure that no members of your staff are sexually discriminated against. This means that if someone on your staff sexually discriminates against another they could be taken to employment tribunal and so can you. Such discrimination can take place in the workplace and at work functions such as staff parties or even drinks down the pub. You may have a defence if you can show that you took all reasonable steps to stop the discrimination occurring. 

Direct discrimination

You directly discriminate against someone if you treat them differently because of their sex. The complainant employee must show they were treated in a way which put them at a disadvantage compared to a colleague (real or hypothetical) of the opposite sex. It would, for example, be direct discrimination to treat someone less favourably because they are pregnant, have a pregnancy-related illness or want to take maternity leave. The discrimination could be intentional or accidental. Good intentions do not amount to justification.

Indirect discrimination

If you introduce a new policy into the workplace or stipulate a requirement of employment – even if it apparently has nothing to do with gender – you must ensure that it doesn’t tend to affect one sex (or married person) rather than the other as this would amount to indirect discrimination. A requirement for extensive work-related travel could discriminate against women with children, for example, since they tend to be the main child-carers.

You will have a defence in indirect discrimination claims if you can show the policy/ requirement can be objectively justified on grounds other than sex; relates to a real need on your part; and is appropriate and necessary to meet that need. 

Harassment

Sexual harassment - and harassment related to sex – is explicitly banned in employment or vocational training. Sexual harassment can include sexist jokes, showing off sexually explicit material, sexual innuendos or vulgar comments or gestures. It also includes the circulation of coarse emails, even if this is not actually sent to the person being harassed. You must ensure that someone who has previously been harassed isn’t treated less favourably in the future as this in itself can amount to harassment. 

Exceptions 

Genuine occupational qualification

Occasionally discrimination is allowed if it's seen to be a genuine occupational qualification for the job in question; (e.g., you’d probably be justified in stipulating women-only applicants for a bra-fitter’s job).

Positive action

You can give preferential treatment to an individual/ group to stop, or make up for, past disadvantages suffered by that individual/ group. Under the SDA you can:

• provide training to people of one sex which would equip them for certain work if in the previous year there were none, or very few, of them doing that kind of work; or
• run a discriminatory recruitment campaign to persuade members of one sex to apply for particular types of work, provided there were none, or very few, doing that kind of work in the preceding 12 months  

Employment for the purposes of religion

Sex discrimination is legal in relation to employment for the purposes of an organised religion, where employment is limited to one sex so as to comply with “the doctrines of the religion or to avoid offending the religious susceptibilities of a significant number of its followers”.  

Time limits

Employees have to tell you in writing that they have a grievance and then wait 28 days to give you time to respond. They must complain to a tribunal within three months of the behaviour complained of. Until April 2009, this time limit can be extended by three months to allow the statutory grievance procedure to take place (the government plans to abolish the statutory grievance procedure from April). 

Remedies

If an employment tribunal finds against you, it can issue a declaration, award compensation, or make a recommendation.  

Declaration

This sets out the employee’s rights and outlines the ways you have acted unlawfully. 

Compensation

Unlimited compensation can be claimed for sex discrimination. It is awarded for injury to feelings and any financial losses. It can include past and future loss of earnings and loss of pension. If the discrimination has made the employee ill, compensation for personal injury can also be claimed.  

Recommendations

The tribunal can recommend ways in which you can lessen the effect of the discrimination on the employee – equal opportunity training, for example. If the recommendations aren’t followed, the compensation level may rise.