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Sex discrimination

Under the 1975 Sex Discrimination Act it is unlawful for an employee to be treated differently from other employees where the reason for that different treatment relates to their sex, marital status or because they are undergoing, about to undergo or have undergone a gender reassignment. If you think you have been discriminated against on any of these grounds then you should contact employmentlawhelp immediately.

What is sex discrimination?

The Sex Discrimination Act 1975 (SDA) makes it unlawful to discriminate against a person on the grounds of their sex in a number of different areas including employment, education, the disposal of property and the provision of goods, facilities and services. Here we shall concentrate on discrimination in relation to employment. It also prohibits discrimination against married people in relation to employment and discrimination against those who are about to undergo, are undergoing or who have undergone a gender reassignment (sex change).

The SDA applies equally to men and women and to all ages, although usually it is women who are being discriminated against. However, you must note that unlike in relation to race discrimination, the discrimination being complained of must be against the person making the complaint.

The Act does not require any qualifying period of employment. An employee is covered from the moment that they apply for a job. This protection continues throughout the period of employment, and may also cover the provision of references for a former employee after the employment has terminated. It covers, not just employees but workers, agency workers and often also the self employed.

Discrimination can be either direct or indirect discrimination and can also involve victimisation and harassment – of which more shortly. The discrimination does not have to be deliberate, it can be accidental and can occur where the person carrying out the discrimination did not realise that the acts or omissions were discriminatory. Employers should be particularly aware of the possibility for inadvertent discrimination and should ensure that employees are adequately trained and made aware of the problems which can arise.

You should also be aware of the provisions in relation to equal pay (see separate item on Equal Pay in the discrimination section of this web site). The 1970 Equal Pay Act made it unlawful for employers to discriminate between male and female employees in relation to their pay and conditions where those employees are doing:

  • the same or similar work;
  • work rated as equivalent in a job evaluation study by the employer; or
  • work of equal value.

Thus there is the potential for there to be both sex discrimination and a breach of the provisions of the Equal Pay Act.

Types of sex discrimination

Discrimination on the grounds of sex is unlawful in all parts of employment including in relation recruitment, terms and conditions, pay and benefits, how employees behave towards one another, training, promotion, redundancy and dismissal. There are some circumstances in which a job can be offered to someone of a particular sex and we shall consider these exceptions, called “genuine occupational qualifications” later in this item.

There are in effect four different types of sex discrimination:

  • direct discrimination – where someone is treated specifically differently because of their sex, because they are married or because of they have undergone, are undergoing or about to undergo gender reassignment. Examples of this would include paying less to a woman than to a man even though they are doing the same, or a broadly similar, job; appointing a person because they are single (this could aply where an employer appoints a single woman rather than a married woman because there is less chance of her wanting to start a family), or dismissing a female employee because she is, or may become, pregnant.
  • indirect discrimination – this occurs where a provision, criterion or practice which is applied to everyone has the effect of discriminating against one sex more than the other and doing so cannot be justified. Examples of this include a requirement that all employees be over a certain height, which might be discriminatory because women tend not to be as tall as men or a requirement that all employees must be prepared to work long or variable hours because more women than men are likely to have primary child-care responsibilities which would make working long or uncertain hours difficult.Note, however, that it may be possible for an employer to justify the apparently discriminatory requirement if, for example, it is necessary for the job. Thus, for example, if employees need to be a certain height to do a job or the nature of the job is such that uncertain hours of work are essential, then the employer may not be discriminating. See later in the exceptions section.
  • harassment – this consists of behaving in an offensive manner, or encouraging or allowing other people to do so or engaging in conduct which is unreasonable, unwelcome and offensive and which creates an intimidating, hostile or humiliating environment (for example, making sexual remarks or gestures, allowing displays or distribution of sexually explicit material, or giving someone a potentially offensive nickname because of their gender).It should be noted that the important criteria is whether the person being harassed finds the conduct offensive - not whether the conduct was meant to be offensive or whether another person would have found it to be offensive. However, the conduct must objectively be capable of being perceived as harassment.
  • victimisation – this occurs where an employee is treated less favourably because he or she has alleged that they have been discriminated against or assisted another person in pursuing such an allegation. It does not have the same meaning as is usually attributed to victimisation in normal parlance. Employers who don’t stop sex and gender discrimination by their employees may themselves be discriminating unlawfully.

Exceptions and justifications

There are a number of circumstances where an employer is entitled to discriminate on the grounds of someone’s sex, although these are extremely limited.

So far as direct discrimination is concerned, an employer may be entitled to discriminate in relation to a person’s employment if being of a specific sex is a genuine occupation qualification (GOQ) for the job. For this to occur:

  • the essential nature of the job must require that either a man or a woman be appointed or promoted for reasons of physiology (excluding physical strength or stamina) or, in relation to dramatic performances or other entertainment, for reasons of authenticity; or
  • there are privacy or decency considerations to be borne in mind in relation to the job, for example physical contact is required, or there is a need for those for whom the work is is provided to be in a state of undress; or
  • the job is in, or involves living in, a private home and requires someone of the same sex because of the degree of physical or social contact with the person living in the home; or
  • the job requires the employee to live in premises provided by the employer and there are sleeping and/or sanitary facilities for one sex only and it would be unreasonable to expect the employer to provide others; or
  • the job needs to be undertaken in a single sex establishment such as a prison or old people’s home and it is reasonable having regard to the nature of the establishment for the job to be held by someone of the same sex; or
  • the job involves the provision of personal services including welfare or education, which can most effectively be provided by a person of a particular sex, or
  • the job is likely to involve the performance of duties outside the United Kingdom in a country whose laws or customs are such that the duties could not, or could not effectively, be performed by a person of a particular sex, or
  • the job is one of two to be held by a married couple.

So far as indirect discrimination is concerned, the burden of proving the justification is upon the employer who must be able to show that there is an objective reason, for example economic or efficiency related grounds, for the requirement which is discriminatory and it is reasonable in all the circumstances for that ground to be applied.

Can an employer positively discriminate?

In simple terms no, positive discrimination in favour of one sex would be negative discrimination against the other. However, in some circumstances, it may be acceptable for an employer to encourage either men or women to apply for jobs or to provide some additional training so that either men or women could apply for jobs. This is known as ‘positive action’.

Thus, for example, the employer might wish to increase the number of female employees in a particular role and might offer them skills-based training to help them qualify. However, when it comes to interviewing for such a post the most suitable candidate must be appointed even if this means not appointing the women who have been specifically trained.

Dealing with discrimination

If you are an employee and you believe that you have been discriminated against at work, then you should, in the first instance, raise the matter with your employer and, if you do not receive a satisfactory outcome, invoke your firm’s grievance procedure. You should ensure that the compliant is put in writing. Your employer should have an equal opportunities and anti-discrimination policy and if you have not seen this ask them for a copy. employmentlawhelp will be happy to assist you in relation tot his should you require, or alternatively speak to your Trade Union representative.

There is no qualifying period of employment for you to be able to raise an issue of discrimination (as there is in the case of unfair dismissal, for example) and an employee is covered from the moment that they apply for a job – they do not even have to be employed if they feel that they have been unfairly rejected for a particular role on the basis of the gender. Moreover, the protection which an employee enjoys will continue throughout their employment and beyond – so that a former employee can claim discrimination after the end of their job provided that it relates to their employment – for example in relation to dismissal or the refusal of a reference after the termination of employment.
It should also be noted that the provisions apply equally to all employees – both part-time and full-time, fixed contract and agency workers and even, in some circumstances, those who are self employed.

If having raised the matter with you employer you are still not happy with the response, then you should contact employmentlawhelpas a matter of urgency

So far as employers are concerned you must ensure that your processes and procedures are not discriminatory and that you have taken steps to ensure that your employees are aware of the fact that they must not discriminate against their colleagues or subordinates. You should, therefore, think about matters such as:

  • whether your recruitment processes are acceptable – for example don’t allow interviewers to ask female candidates if they plan to start a family or what they will do about child-care arrangements,
  • how you assess existing employees for promotion – are opportunities open to staff of both sexes?
  • are you aware of your responsibilities in relation to maternity and paternity leave and how do you deal with staff returning to work afterwards?
  • do you encourage all staff to attend work related events?
  • have you made staff aware that they must not tell sexist jokes or jokes that are likely to be offensive to staff of a particular gender?
  • do you have a procedure in place whereby staff can raise issues in relation to discrimination?

These, and many other issues, need to be borne in mind. For assistance with implementing appropriate procedures, or for a review of your existing policies and processes, please contact employmentlawhelp.

You should also bear in mind that as an employer, the responsibility for sex discrimination will normally lie with you, even if it is perpetrated by your employees without your knowledge. This is called vicarious liability. Moreover, this liability will extend not only to incidents in the workplace but to acts that take place outside of work, but which have a link back to the workplace – for example parties and drinks at the pub after work.

Making a claim for discrimination

For an employee to be able to take a claim to the Employment Tribunal they must be able to show that they themselves have been discriminated against on the grounds of their sex. In other words showing that, for example, women in general have been discriminated against would not be enough if the person making the claim had not herself been discriminated against.

The level of proof is known as the “balance of probabilities” level of proof – that is to say a Tribunal would not need to be absolutely certain that discrimination had occurred, simply that it is more likely than not that the way a person was treated was on the grounds of their sex.
Having established that there are facts from which a Tribunal could decide that there had been discrimination, the burden then moves over to the employer who must then show that notwithstanding the evidence, no discrimination occurred.

Employees need to be aware that unless serious circumstances such as threats or ongoing and unacceptable harassment is taking place then they must raise the discrimination in writing with their employer and follow the grievance procedure before they can bring a claim to the tribunal. Employees are also allowed to serve a questionnaire on the employer. There is a set form of questionnaire set out in the Sex Discrimination (Questions and Replies) Order 1975, SI 1975/2048. A copy of the questionnaire form can be obtained from the web site of the Government’s Equalities Office

Normally the questionnaire must be served within 3 months of the allegedly discrimination and the employer must reply within 8 weeks (Sex Discrimination Act 1975 s.74 as amended by Employment Equality (Sex Discrimination) Regulations 2005, SI 2005/2467 reg 32). Whilst there is no statutory obligation on an employer to answer the questionnaire an employment tribunal will be entitled to draw whatever inferences it considers appropriate from a failure to answer within the time allowed or from evasive or equivocal replies. The questionnaire will not, however, replace the need to raise a formal grievance.

A complaint is made on form ET1 which you must send to the Regional Office of Employment Tribunals. You can obtain a form ET1 from a number of places including Jobcentres, the local employment tribunal or online at the Employment Tribunal web site. The complaint must be made within three months, less one day, from the date upon which the discrimination first happened or, if you have gone through the grievance procedure, six months less one day. Note, however, that an employer must be given at least one month to sort out your grievance before you can proceed to the Employment Tribunal so it is vital that you complain to your employer and start the grievance process as soon as possible.

For more information on taking matters to the Employment Tribunal, including the kind of remedies which are available to you, contact employmentlawhelp on 0844 8044 800 and we will be pleased to help you.