The law relating to sex discrimination is governed by the Equality Act 2010.
Sex is a “protected characteristic” and the Act prohibits direct discrimination (which includes discrimination by association and discrimination by perception), indirect discrimination, victimisation and harassment.
Direct discrimination is where, because of the protected characteristic of sex, a person treats another person less favourably than that person treats or would treat other persons.
Indirect discrimination is where person A applies to person B, to B’s disadvantage, a provision, criterion or practice that A applies or would apply equally to persons not of the same sex as B, but which puts, or would put, persons of the same sex as B at a particular disadvantage when compared to other persons and which A cannot show to be a proportionate means of achieving a legitimate aim.
An employer may be able to justify the discriminatory result of a provision, criterion or practice (PCP) by establishing that it is justifiable because it is a “proportionate means of achieving a legitimate aim.” For example, having male or female cleaning attendants. However such examples are rare; they are known as Genuine Occupational Requirements.
Harassment is where person A engages in unwanted conduct related to the protected characteristic of sex, or unwanted conduct of a sexual nature, which has the purpose or effect of violating person B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her, or less favourable treatment because of a person’s rejection of, or submission to, sex-related harassment or harassment of a sexual nature. Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to harassment under the Act.
Victimisation is where person A subjects person B to a detriment because B has done, or A believes that B has done, or may do a “protected act”.
Although sex discrimination cases are not wholly confined to women, the vast majority of them are and so the legislation tends to be written in the context of women being subject to detriment, harassment or victimisation on the grounds of her sex.
Some examples may help to unravel what can be quite a complex subject.
Employer A rejects all female job applicants, preferring to employ men. This is direct discrimination and cannot be justified.
Employer B insists that job applicants must be physically strong in order to be considered, ruling out more women than men (as on average women have less physical strength). If the job has not been assessed as really requiring high levels of physical strength then the PCP of needing high physical strength will not be ruled to be a proportionate means of achieving a legitimate aim and therefore this is indirect discrimination and the justification defense has failed.
Employer C advertisers for a female care assistant to work with female patients in need of intimate care. This is directly discriminatory but on analysis the employment tribunal finds that the requirement to be a female is a ‘Genuine Occupational Requirement’ for this role.
Typical employment law pitfalls
In common with most strands of discrimination obvious breaches are not difficult to spot. Less obvious breaches could occur for a myriad of reasons, but by way of a few examples:
- Job adverts could imply a particular sex (waitress, barmaid, handyman, or ads simply written in a particular gender style) which cannot be justified
- Employers for the best of intentions can overprotect, e.g., a pregnant woman, if she is taken off her duties when the risks to her were manageable and she did not want to be taken off her duties
- Deciding not to include a pregnant woman on a training course
- Scheduling office meetings for a day when more part time staff (who are statistically more likely to be female) are not in work
- Having company social events that are predominantly male activities that women are unlikely to want to participate in
Clearly the above list is far from exhaustive.
Employers’ liability is not limited to its own actions. There are circumstances in which you could be liable for the acts of others (employees, contractors etc.)
The usual 2 years minimum continuous service requirement for bringing claims at an employment tribunal does not exist in the case of unlawful discrimination.
Help & Support
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