Overview of sex discrimination

The Equality Act 2010 outlaws discrimination in the workplace on the grounds of sex, marital status, civil partnership status and gender reassignment. It covers:

• recruitment and selection;
• training, pay and benefits;
• promotion;
• work practices;
• redundancy and dismissal; and
• terms and conditions of work.

Most workers have protection from sex discrimination at work, including employees, agency workers, trainees and the self-employed.

Who is liable?

It is an employer’s duty to ensure that no members of staff are sexually discriminated against. If one employee sexually discriminates against another, the employee and his/ her employer could be taken to employment tribunal. Such discrimination can take place in the workplace and at work functions such as staff parties or even after-work drinks down the pub. Employers may have a defence if they can show that they took all reasonable steps to stop the discrimination occurring.

Direct discrimination

Someone is directly discriminated against if they are treated 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. The discrimination could be intentional or accidental. Good intentions do not amount to justification.

Note: if someone is making a claim about discrimination because they are pregnant or on maternity leave, they don't need to prove that someone of the opposite sex has been treated more favourably than them.

Indirect discrimination

If an employer introduces a new policy into the workplace or stipulates a requirement of employment – even if it apparently has nothing to do with gender – they must ensure 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.

Employers will have a defence in indirect discrimination claims if they can show the policy/ requirement can be:

• objectively justified on grounds other than sex;
• relates to a real need on their 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.

Employers 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.

Victimisation

If an employee complain about sex discrimination, they must not be treated unfairly just because they have made a complaint.

Making a complaint includes taking a case to court, going to an employment tribunal or standing up for their rights in some other way.

Employees can get protection if they are victimised because they have made a complaint about sex discrimination. They can also get protection from discrimination for helping someone else to make a complaint about sex discrimination, eg, by giving evidence as a witness in court.

Exceptions

Genuine occupational qualification

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

Positive action

Employers can give preferential treatment to an individual/ group to stop, or make up for, past disadvantages suffered by that individual/ group. They 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”.

Carers

Those who have caring responsibilities – eg, looking after a child or an elderly or disabled relative, are protected by law from being discriminated against at work.

If, for example, your employer refuses to let an employee work flexible hours so they can carry out their caring responsibilities, this would be regarded as discrimination.

Time limits

Employees must complain to a tribunal within three months of the behaviour complained of. The employer usually has to respond to the claim within 28 days of receiving the employee’s claim form. If they don’t respond, an employment judge may decide on the case without the employee having to go to a hearing.

Before going to an employment tribunal though, employees should try to resolve the problem by complaining to their manager and/ or going through their employer’s grievance procedure.

Remedies

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

Declaration

This sets out the employee’s rights and outlines the ways the employers has 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 an employer 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.

Getting legal advise

Need help finding a discrimination solicitor near you? LawyerLocator covers all of the UK from major cities like London, Manchester and Glasgow to small towns in the countryside.

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