What is sex discrimination?
The Sex Discrimination Act 1975 makes discrimination against
a person on grounds of their sex illegal. Sex discrimination
can be direct or indirect. It can also take the form of victimisation.
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.
Direct sex discrimination
It is direct sex discrimination to treat a person less favourably
on grounds of their sex than someone of the other sex would
be treated in the same circumstances.
Examples of direct sex discrimination include:
advertising a vacancy for a 'receptionist', implying that
the job is only open to men
sexual harassment
dismissing an employee because
she is pregnant
a woman who takes time off
for pregnancy or maternity leave is regarded as unreliable
and is demoted when she returns to work
police service employees
a woman is subject to personal
comments about her physical appearance in a way that would
not have happened to a man
a woman is not encouraged to
meet clients or invited to social events to meet clients,
and instead a primarily male group is selected
Sexual harassment
Sexual harassement is essentially unwanted conduct of a sexual
nature, or other conduct based on sex affecting the dignity
of women and men at work. This is a form of direct discrimination,
in that a person of the other sex would not be treated in
the same way.
Examples of sexual harassment include the following:
Physical harassment
Unwanted sexual comments or
personal comments about a woman's appearance
Non-verbal harassment such
as unwanted gestures or displays of pornographic pictures
The victim does not have to demonstrate any financial or
other specific loss, such as a threat of dismissal. It is
enough that her working environment has become intimidating,
hostile or offensive. For example, where a female is subjected
to constant suggestive remarks by males as a part of a campaign
to persuade her to leave, case law has shown that tribunals
are unlikely to require the female to produce evidence of
a man having been treated differently, since the treatment
that she received was clearly discriminatory by reason of
its sexual character.
Although single incidents can constitute harassment, a one
off incident would have to be more serious.
Indirect sex discrimination
It is indirect sex discrimination to set conditions or requirements
for someone to meet which, while apparently applying to everyone,
have a greater effect on one sex.
Examples of indirect sex discrimination include:
a requirement for full time working, which generally fewer
women than men can do by reason of their child care commitments.
In these circumstances, the real test tends to be whether
the employer can justify their requirement for full time
work
a requirement that an employee
should not wear jewellery. The proportion of women wearing
jewellery is much higher than that of men and this is
also unlikely to be a justifiable requirement for employment
(regardless of sex)
the dismissal of all part-time
workers in a firm where all of the part-time workers are
female. This may also be direct sex discrimination
Employer's defence of Justification
A defence of justification is available to employers in an
indirect discrimination case, where they can show that there
is an objective need for the requirement. To prove this defence,
they have to show that the requirement is necessary, and not
merely convenient.
Victimisation
Under the law, victimisation occurs where someone is treated
less favourably as a result of complaining, bringing proceedings
or otherwise asserting their rights under sex discrimination
legislation. It is also victimisation if a person is treated
less favourably because they have supported someone else taking
action, for example, by acting as a witness in a sex discrimination
case.
Sex discrimination and unfair dismissal
It is often a good idea to claim both unfair dismissal and
sex discrimination. There is no qualifying period for making
a claim for sex discrimination and there is also no ceiling
on the award that can be made, unlike in unfair dismissal.
Taking legal action about sex discrimination
If you are an employee in England, Wales or Scotland, and
you think you have suffered sex discrimination at work, you
must raise a written grievance with your employer before you
can make a claim to an employment tribunal. This is a minimum
statutory requirement. Furthermore, any claim to the tribunal
must be made within 3 months of the last act of discrimination.
You do not have to demonstrate that there was an intention
to discriminate against you. It is merely necessary to show
that discrimination took place.
When taking action under legislation against sex discrimination,
a comparison must normally be made between how a woman has
been treated and how a man has been treated. However, if a
woman cannot identify a man who is being treated, or has been
treated, more favourably, she can still take a case if she
can show that a man would have been treated more favourably.
Who is liable?
Responsibility for sex discrimination usually lies with the
employer, and also any other employee or worker who is found
to have discriminated and for whom the employer has responsibility.
This is known as vicarious liability.
This covers not only incidents of discrimination actually
in the work place, but may also extend to out of work activities
such as Christmas parties and drinks in the pub after work.
Employers have a defence to a complaint of discrimination
based on vicarious liability, if they can show that they took
all reasonably practicable steps to prevent the discrimination
occurring. It is rare for employers to succeed with this defence.
But even if they do, the tribunal claim can be pursued against
the individual employee.
Proof
Proving sex discrimination is not easy. A woman complaining
of discrimination must prove that her employer discriminated
against her on the grounds of her sex. This has to be proved
"on the balance of probabilities". This means that
the tribunal does not have to be certain, but they have to
think it more likely than not that her treatment was on the
grounds of her gender.
Direct evidence of being treated differently on the grounds
of gender is very rarely available. Therefore where a woman
shows that on the face of it she has been less favourably
treated than a man, the tribunal will look to the employer
to explain the reason for the treatment. If the tribunal is
not satisfied by the employer's explanation, then the tribunal
may be prepared to infer that discrimination has taken place.
From October 2004, unless there are special circumstances
(e.g. threats or continuing harassment by the employer) the
employee must write to the employer raising a grievance and
attend one or two meetings before bringing a discrimination
claim to an employment tribunal.
Remedies
There are three remedies available to a tribunal:
Declaration
Compensation
Recommendation
Declaration
A declaration states the rights of the applicant and in what
respect the employer and any employee has acted unlawfully.
Compensation
Compensation is awarded for injury to feelings and financial
losses. There is no limit on the amount of compensation that
a tribunal may award, and interest is also payable.
Compensation can also include loss of earnings, past and future,
loss of pension and any other outlays associated with the
discrimination.
The amount of compensation that tribunals award in relation
to injury to feelings can vary, depending on the extent to
which the individual's feelings have been injured. Their age
and vulnerability may be considered, and also the severity
of the discrimination, for example, where there is depression.
Compensation for personal injury can also be claimed as part
of the tribunal application. A medical report will be needed
to support a personal injury claim.
Compensation may be reduced if the applicant failed to follow
the statutory grievance procedure (see above).
Recommendation
The tribunal's powers to make recommendations are limited
to recommendations for actions that will benefit the individual
employee and lessen the effect of the discrimination on her.
Recommendations may include, for example, that all members
of management be trained an equal opportunities, that the
employee who has been discriminated against be provided with
additional training or mentoring, or be invited to interview
in relation to future job applications.
If the employer fails to comply with a recommendation, then
a tribunal may order that the employee's compensation be increased.
Some exceptions under the Act
Overseas employment
The Sex Discrimination Act does not apply to workers whose
work is done wholly or mainly outside Britain.
Pregnancy and childbirth
It is not unlawful to give special treatment to women in respect
of pregnancy and childbirth, for example, maternity leave.
Equal Pay Act 1970
In addition to the rights under the Sex Discrimination Act,
The Equal Pay Act 1970 gives a person the right to be treated
equally in terms of pay in comparison to a member of the opposite
sex. The people who are being compared must be working in
the same place or working at different establishments for
the same employer. A woman who believes she is being discriminated
against would have to show that she is employed:
in 'like work', that is, work
that is the same or broadly similar to a man; or
in work which has been rated
as equivalent to a man's job under a job evaluation study;
or
in work which is of equal value
to that of a man in terms of, for example, effort, skill
and decision making.
Other aspects of UK employment
law for employees include:
Landau
Zeffertt Weir Solicitors