Sex Discrimination Solicitors
Our employment law team have considerable experience in advising employees on the law relating to sex discrimination, including unfair treatment, harassment and victimisation. In some cases, an obvious comment, which has been witnessed, may lead to a claim. But discrimination is often more subtle and difficult to prove. Therefore, advice should be sought from specialist solicitors in this area.
IBB Solicitor’s employment law team can provide clear, practical guidance on all areas of unlawful discrimination. Our team includes some of the region’s top ranked employment lawyers with decades of experience representing employees of all levels.
What is sex discrimination?
The Equality Act 2010 (EqA) prohibits discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services for a protected characteristic (i.e. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation).
Whether you are an employee, a worker (engaged under a contract personally to execute work or labour), or a contractor (whose labour is supplied by your employer to another person) you are legally protected. You have rights whatever your length of service and whatever hours you work.
Sex is defined in the EqA as a person’s gender.
The EqA outlaws discrimination in all public authority functions not covered by the EqA, with only limited exceptions. There is a general duty on specified public authorities to work towards the elimination of unlawful discrimination and to promote equality of opportunity and good relations between persons of different racial groups in carrying out their functions. The general duty is supported by specific duties, which are only enforceable by the Equality and Human Rights Commission.
Legal protection against sex discrimination applies even if some of the work is to be done outside Great Britain but will not apply if the work is to be done wholly outside Great Britain. It applies before, during and after employment.
What is direct sex discrimination?
Direct sex discrimination occurs where because of your sex, you are treated less favourably than another person who is not the same sex as you.
Less favourable treatment means a detriment of a kind that a reasonable person would or might take the view that in all the circumstances you have been disadvantaged. An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.
This also occurs where a married person is treated less favourably than an unmarried person.
This also occurs where a person is treated less favourably because that person intends to undergo, is undergoing or has undergone gender reassignment.
- a woman with young children fails to obtain a job because it is feared that she might be an unreliable member of staff; and
- a woman or a man is subjected to sexual innuendo or other offensive conduct of a sexual nature at work on the grounds of their sex.
In claiming direct sex discrimination, you will need to prove that you have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to yours.
The appropriate test requires an employment tribunal to consider the reason why you were treated less favourably: what was your employer’s conscious or subconscious reason for the treatment?
For the purposes of establishing direct sex discrimination, it does not matter whether you have the protected characteristic in question it can be perceived sex. Nor does it matter whether you have the sex in question it can be by association.
- an employer treats an individual less favourably because it perceives that the employee is of a certain gender e.g. the employer thinks that the employee is a man when she is actually a woman.
- an employer treats an individual less favourably because of the sex of someone with whom the employee associates e.g. because the employee’s wife has undergone gender reassignment.
Direct discrimination cannot be objectively justified.
Indirect sex discrimination
Indirect sex discrimination occurs where:
- your employer applies to you a provision criterion or practice (PCP)
- your employer applies (or would apply) that PCP to persons not of the same sexas you
- the PCP puts or would put you at a particular disadvantage when compared to other persons not of the same sex as you
- the employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
This also occurs where a PCP affects a married person to their detriment but not an unmarried person.
There will be no indirect discrimination if your employer’s actions are justified. To establishing justification, your employer will need to show that there is a legitimate aim (i.e. a real business need) and that the PCP is proportionate to that aim. Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of your employer.
In other words, indirect sex discrimination occurs where your employment is subject to an unjustified condition which because of your gender reassignment, you find more difficult to meet.
- a requirement to be clean-shaven. This would have an obvious adverse impact on men. Although, this may in some instances be justifiable on the grounds of health and safety; or
- full-time work. This would have a disproportionate adverse impact on more women with small children as they are generally accepted as taking the primary childcare role. It may not be justified if business needs can still be met by more flexible working arrangements.
In determining whether there has been a detriment, it will be necessary to establish a pool of people for comparison on a like-for-like basis of those that have and have not been affected by the PCP.
What is sex harassment?
Harassment occurs for a reason related to your sex if the conduct is unwanted and has the purpose or effect of:
- violating the person’s dignity or
- creating an intimidating, hostile, degrading, humiliating or offensive environment.
Harassment will also occur where you submitted to or rejected harassment related to your sex because of your rejection of or submission to the conduct, your employer treats you less favourably than it would treat another person if that person had not rejected or submitted to the conduct.
Such conduct will only amount to harassment if in all the circumstances, your perception of the conduct, is reasonably considered to have that purpose or effect.
Your employer will be able to avoid liability for harassment if it can show it took reasonably practical steps to prevent it happening.
What is sexual harassment?
This is the same as sex harassment but the conduct is of a sexual nature. This can include unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
What is victimisation?
Victimisation occurs where you are treated less favourably than another person whose circumstances are the same because you:
- brought claim under the EqA
- gave evidence or information in connection with a claim under the EqA
- did any other thing for the purposes of or in connection with the EqA
- alleged that your employer or another person has committed an act that contravenes the EqA.
Less favourable treatment means a detriment (see above).
What remedies are available for sex discrimination?
If you are an employee, worker or job applicant who believes your employer (or another worker) has discriminated against you then you can bring an employment tribunal claim.
If you who believe that an organisation has discriminated against you in the provision of goods, facilities and services, you can bring a claim in the county court.
Tribunals and courts can award unlimited compensation, which can include an award for injury to feeling and financial losses because of the discrimination.
How long do you have to bring an employment tribunal claim?
An employment tribunal claim under the EqA relating to sex discrimination must be received by a tribunal within 3 months of the complaining act (i.e. 3 months less 1 day). This can be the last act in a series of detrimental acts over a period of time. The time limit is a strict one and will only be extended in certain circumstances.
The time limit can be extended during Acas early conciliation, which must be started before the time limit has expired.
Please see our page Acas early conciliation.
Contact our specialist sex discrimination solicitors today
IBB Solicitor’s employment law specialists represent individuals at all levels no matter the size or sector of the company. If you feel that you have been subjected to unlawful discrimination, we can offer fast, reliable guidance on what to do.
Contact our specialist sex discrimination solicitors today on 03456 381381 or email your details to firstname.lastname@example.org.