Discrimination on Grounds of Sex
Are you an employer facing a sex discrimination claim? Do you need advice as to how to avoid potential claims?
The law currently protects individuals from being discriminated against on the grounds of their sex.
An employer may well be liable for the discriminatory act of an employee, carried out in the course of the employment, whether or not those actions were done with the employer's knowledge or approval.
For example, if one employee is being treated less favourably by another because of their sex then the offender's employer may well be liable for failing to ensure that the treatment did not take place in the workplace.
We recently acted for an employer who received a detailed race Discrimination Questionnaire from a current employee who felt she had been discriminated against on grounds of her race. We advised and drafted for our employer client a response to the Questionnaire which resulted in the employee not proceeding with her claim. Often employers receive lengthy and difficult to answer "Questionnaires" from employees who are about to commence a discrimination claim. Responding properly to the questionnaire is critical - carelss answers may lead to the employer losing the case.
The Equality Act 2010
Discrimination on the grounds of sex or marital status is made unlawful by the Equality Act 2010.
The Act applies to all employees whatever the size of the employer and whether in the public or private sector.
Although the provisions relating to sex discrimination are worded in terms of sex discrimination against women, they apply equally to the treatment of men (with the exception of the special treatment afforded to women in connection with pregnancy or childbirth).
Under the Equality Act 2010 women and men of any age can bring claims of direct or indirect discrimination becuase of sex or marital status, or on the basis of victimisation for bringing or contemplating action under the Equality Act 2010.
The Act also protects job applicants as well as current employees, who require no qualifying period of employment in order to bring a claim.
The Act may also protect ex-employees.
Types of sex discrimination
The Equality Act broadly makes discrimination on the grounds of sex unlawful in certain ways: -
1. Direct Discrimination
Direct discrimination occurs where an employer treats a woman less favourably becuase of her sex than he would treat a man. E.g. recruiting a man instead of a woman on the grounds of gender.
If an employee or worker wishes to bring a claim for direct discrimination, that individual needs to evidence the following: -
(a) that they have suffered less favourable treatment; and
(b) that the less favourable treatment has taken place because of the protected characteristic of sex.
2. Indirect discrimination
Indirect discrimination occurs where an employer applies a policy, provision, criterion or working practice to a person which he applies or would apply equally to persons of the opposite sex, but which is such that the proportion of the claimant's sex who can comply with it is considerably smaller than the proportion of persons of the opposite sex who can comply with it.
An employer may argue that an act of indirect discrimination is justifiable provided it is a proportionate means of achieving a legitimate aim.
3. Victimisation
It is unlawful to discriminate against a person by victimising that person for either bringing or contemplating a claim under the Equality Aact 2010 or for helping someone else to bring a claim.
4. Harassment
It is now unlawful for an employer to subject an individual to harassment. Harassment is defined as unwanted conduct on the grounds of a recipient's sex or unwanted conduct of a sexual nature.
5. Pregnancy related discrimination
It is also unlawful for any employer to treat an individual less favourably on grounds relating to pregnancy.
6. Marital discrimination
The Equality Act 2010 also makes it unlawful to discriminate either directly or indirectly, against married persons of either sex on the grounds of their marital status.
It should be noted that the law also protects those in civil partnerships from discrimination in the workplace.
Employer's liability for discrimination
An employer may well be liable for the discriminatory act of an employee, carried out in the course of the employment, whether or not those actions were done with the employer's knowledge or approval.
For example, if one employee is being treated les favourably by another because of her sex then the offender's employer may well be liable for failing to ensure that the treatment did not take place in the workplace.
Sex discrimination in practice
There are a number of contexts in which the forms of discrimination discussed above can affect employees in the workplace: -
· Job advertisements
· Recruitment
· Promotion, transfer and training
· Benefits, facilities and salary
· Dismissal
· Sexual harassment
· Dress codes and appearance
· Pregnancy and maternity
· Part time and short service workers
· Collective agreements and redundancy procedures
· Provision for death and retirement
· Bullying and harassment
The Equal Pay Act
The Equal Pay Act ("the EPA") provides the right for men and women to receive equal pay for equal work.
In general terms the EPA makes it unlawful for an employer to discriminate between men and women in relation to the terms of their contracts of employment. The ambit of the EPA therefore extends beyond terms and conditions relating to pay.
The EPA provides that all employees have the benefit of an "equality clause" implied into their contracts of employment, so that no one is treated less favourably on account of his or her sex with regards to terms and conditions of employment.
Under the EPA, a woman may bring a claim where she is treated less favourably than a comparable man in relation to any term or condition contained in her contract of employment.
In order to bring a claim, a woman must chose as her comparator a man who is treated more favourably than herself. She must then show that, in relation to her chosen comparator, she is:-
· employed on like work with him; or
· employed on work related as equivalent to his; or
· employed on work of equal value to his.
Complaints to an Employment Tribunal
Complaints under the Equality Act and Equal Pay Act may be made to an Employment Tribunal.
If it is found that an employer has discriminated against the employee on the grounds of sex then the Tribunal may award damages.
Damages may include loss of earnings, an award for injury to feelings, a declaration that the employee has been discriminated against and an order that such discrimination ceases.
Please note that this website is currently being worked on to update references to legislation following the introduction of the Equality Act 2010. Until this work is complete the site may reference to earlier legislation.
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- Sex Discrimination
- Race Discrimination
- Disability
- Sexual Orientation
- Religion or Belief
- Age Discrimination
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