Overview of sex discrimination in employment

Under the Sex Discrimination Act 1975 (SDA 1975), it is illegal for your employer, or a prospective employer, to discriminate against you because of your gender, your marital status or because you have had, or are planning to have, gender reassignment.

Encompassing both male and female workers and all kinds of organisations in the UK, sex discrimination laws cover recruitment, employment terms and conditions, pay and benefits, status, training, promotion and transfer opportunities, redundancy and dismissal.

There is no minimum amount of time you need to have worked for a company before you can bring a sex discrimination claim before an employment tribunal, but a claim must usually be brought within three months of the alleged discrimination. You must go through the grievance procedure at work before you bring a claim.

There are two main types of discrimination: direct and indirect discrimination.

Direct discrimination

Direct discrimination occurs when you are treated differently because of your sex. It is irrelevant whether the discrimination was intentional or accidental or what the motive was. Even if the discrimination was done with the best of intentions, the defence of justification cannot be used in cases of direct discrimination.

If you are claiming discrimination, you must show you were treated in a way which put you at a disadvantage compared to a colleague (real or hypothetical) of the opposite sex.

Pregnancy discrimination

If you are treated less favourably because you are pregnant (or have a pregnancy related illness) or because you are taking maternity leave, this also amounts to direct discrimination.

Harassment

Harassment is unwanted conduct on the grounds of your sex or, unwanted verbal, non-verbal or physical conduct of a sexual nature. If your “dignity is violated” or the conduct creates an “intimidating, hostile, degrading, humiliating or offensive environment” for you, this is harassment. There’s no need to show any loss. Treating you less favourably because you have rejected or submitted to harassment also amounts to harassment, as is treating you less favourably if you have had or are having gender reassignment.

Indirect discrimination

You can be indirectly discriminated against if your employer has introduced a policy or a requirement of employment which, although seemingly, perhaps, nothing to do with gender, tends to affect one sex (or married person) rather than the other. A requirement to work full-time, for example, might be unlawful discrimination against women.

You must show the policy puts or would put the relevant group at a disadvantage and that you have actually been put at a disadvantage by the policy.

Employers in indirect discrimination claims can use the defence of justification if they can show the policy can be objectively justified on grounds other than sex; relates to a real need on their part; is appropriate and necessary to meet that need.

Who do you sue?

You can bring a discrimination claim against your employers, the employee whose conduct you are complaining about, or both. Discrimination can occur at work or in off-site work settings such as at a Christmas party or down the pub. The employers may have a defence if they can show they took all reasonable steps to stop the discrimination happening.

Remedies

If an employment tribunal finds in your favour, it can issue a declaration, award compensation, or make a recommendation.

Declaration

This sets out your rights and outlines the ways the defendants 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 you ill, compensation for personal injury can also be claimed.

Recommendations

The tribunal can recommend actions which will lessen the effect of the discrimination on you – equal opportunity training for the employers, for example. If the recommendations aren’t followed, the compensation level may increase.