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Sex Discrimination

Sex Discrimination

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, witnessed, may lead to a claim, but discrimination is often more subtle and difficult to prove.  This is why advice should be sought from specialist solicitors in this area.

The Equality Act 2010 (EqA) prohibits sex discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services and in the disposal or management of premises.  It applies men and women of any age, including children.

The law protects not only employees but also people engaged under a contract personally to execute work or labour. Contract workers whose labour is supplied by their employer to another person (the principal) are protected. Employees (and potential employees) have rights whatever their length of employment and whatever hours they work. 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.

An illegal contract of employment or illegal conduct of the employee is no bar to bringing a claim under the EqA, unlike an unfair dismissal claim.

The EqA outlaws discrimination in all public authority functions not covered by the EqA, with only limited exceptions by placing 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.

Direct sex discrimination 

This occurs where because of an individual’s sex, s/he is treated less favourably than a person of the opposite sex and suffers a detriment.

This also occurs where a married person is treated less favourably than an unmarried person to their detriment. 

This also occurs where a person is treated less favourably because that person intends to undergo, is undergoing or has undergone gender reassignment and suffered a detriment.

In other words, direct discrimination occurs where someone is put at a disadvantage on discriminatory grounds because of his/her employment. This may occur even when unintentional. Detriment means treatment of a kind that a reasonable person would or might take the view that in all the circumstances s/he had been disadvantaged.  An unjustified sense of grievance cannot amount to a detriment.  It is not necessary to demonstrate some physical or economic consequence. For example:

  • 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.

An individual claiming direct discrimination will need to prove that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs. The relevant circumstances are those factors which the employer has taken into account in deciding to treat the individual as it did, with the exception of his/her sex.  The appropriate test requires an employment tribunal to consider the reason why the individual was treated less favourably: what was the employer's conscious or subconscious reason for the treatment?

For the purposes of establishing direct discrimination, it does not matter whether or not the discriminator has the protected characteristic in question it can be perceived sex.  Nor does it matter whether the victim actually has the sex in question it can be by association. For example:

  • 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

This occurs where:

  • the employer applies to the individual a provision criterion or practice (PCP);
  • the employer applies (or would apply) that PCP to persons not of the same sex as the individual;
  • the PCP puts or would put persons of the individual’s sex at a particular disadvantage when compared to other persons; and
  • the PCP puts or would put the individual at that disadvantage; and
  • 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 the employer’s actions are justified.  To establishing justification, an 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 the employer, there is no margin of appreciation.

In other words, indirect discrimination occurs where an individual’s employment is subject to an unjustified condition which one sex (or married person) finds more difficult to meet although on the face of it the PCP is “neutral”. For example:

  • a requirement to be clean-shaven.  This would have an obvious adverse impact on men.  Although, this my 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.

Sex harassment

It will be unlawful to harass a person for a reason related to sex, in engaging in unwanted conduct which has the purpose or effect of:

  • violating the person’s dignity; or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment.

Such conduct will only amount to harassment if in all the circumstances, in particular the perception of the person, it should reasonably be considered as having that purpose or effect.

Employers will be able to avoid liability for harassment of their employees if they can show they took reasonably practical steps to prevent it happening.

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.

Less favourable treatment for rejecting or submitting to harassment

This occurs where an employee submitted to or rejected sexual harassment or harassment related to sex or gender reassignment.

It will be unlawful to harass a person for a reason related to sexual harassment or harassment related to sex or gender reassignment, in engaging in unwanted conduct which has the purpose or effect of:

  • violating the person’s dignity; or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment; and
  • because of that person’s rejection of or submission to the conduct, an employer treats that person less favourably than it would treat him/her if that person had not rejected or submitted to the conduct.

Victimisation

This occurs where an individual is treated less favourably than another individual whose circumstances are the same because s/he has taken action to assert their statutory rights or assisted a colleague with information in that regard under the EqA and that individual suffers a detriment, in that s/he:

  • brought proceedings against the discriminator under the EqA; or
  • gave evidence or information in connection with proceedings brought by any person against the discriminator under the EqA; or
  • doing any other thing for the purposes of or in connection with the EqA; or
  • alleged that the discriminator or any other person has committed an act that (whether or not the allegation so states) would amount to a contravention of the EqA.

Remedies

Employees, workers or job applicants who believe their employer (or another employee) has discriminated against them can bring a claim in the employment tribunal.

Individuals who believe that an organisation has discriminated against them in the provision of goods, facilities and services or the disposal or management of premises 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 as a result of the discrimination.

Time limits

A claim under the EqA relating to employment must be brought before an employment tribunal within 3 months (i.e. 3 months less 1 day) of the complaining act.  This can be the last act in a series of 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 by up to 6 weeks during Acas early conciliation, which must be started before the time limit has expired.

Contact our specialist discrimination solicitors today

Have you experienced discrimination at work on the basis of sex, gender or marital status? At IBB Solicitors, our employment law team has a wealth of in discrimination cases. Contact us today on 03456 381381 or email employment@ibblaw.co.uk