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Sex Discrimination

Sex Discrimination

Our employment law team have considerable experience in advising employees on sex discrimination law, including unfair treatment, equal pay claims, harassment or victimisation.

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

What does Sex discrimination cover?

  • Prohibits direct and indirect sex discrimination, victimisation and harassment.
  • Direct discrimination occurs where either a woman or a man is treated less favourably on the grounds of his/her sex than a person of the opposite sex and suffered a detriment, eg sexual harassment or treating a woman adversely because she is pregnant.
  • Occurs where a married person is treated less favourably than an unmarried person to their detriment.
  • Occurs where a person is treated less favourably on the grounds that the person intends to undergo, is undergoing or has undergone gender reassignment and suffered a detriment.
  • Direct discrimination occurs where someone is put at a disadvantage on discriminatory grounds in relation to his/her employment.

Examples of sex discrimination

  • A woman with young children fails to obtain a job because it is feared that she might be an unreliable member of staff.
  • 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.

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.

Direct discrimination cannot be justified.

Indirect sex discrimination

  • Occurs where a provision, criterion or practice is applied to both sexes but to the detriment of a considerably larger proportion of one sex than the other, and where it is not justifiable, irrespective of sex, to apply that provision, criterion or practice.
  • Where a provision, criterion or practice affects a married person to their detriment but not an unmarried person.

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 provision, criterion or practice is “neutral”.

Examples of indirect sex discrimination

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.

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 provision, criterion or practice.

Victimisation and harassment

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 and that individual suffers a detriment. Harassment is 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.

What should employers be doing?

Employers should have an equal opportunities policy and a harassment policy and provide training to both employees and management on such policies and the implications for them and their treatment of others.

Contact our sex discrimination solicitors today

If you feel that you may be a victim of sex or gender discrimination or harassment including unfair treatment, equal pay claims, harassment or victimisation, you could be entitled to compensation. Contact IBB's employment solicitors today for expert advice. Call us today on 03456 381381 or email employment@ibblaw.co.uk.

Marc Jones

Marc Jones

Partner marc.jones@ibblaw.co.uk 01895 201719