Sex discrimination

Employment law aims to protect a woman employee against unfair treatment. Under the Equality Act 2010, it is unlawful for an employer to treat unfavourably, compared to others, an employee on the basis of his or her sex. Also, it is unlawful for a woman to discriminate against another woman because of her sex, and for a man to discriminate against another man because of his sex. Employers must not discriminate as a result of marriage, civil partnership, pregnancy, maternity, or because an employee intends to undergo, is undergoing or has undergone gender reassignment. 

Furthermore, an employer cannot keep pay arrangements secret in order to hide gross gender inequalities in their organisation. Pay should, typically, be the same for workers of one gender as it is for the other. This applies if an employee is doing work that is similar to others, if a formal evaluation concludes that work an employee does is similar to others or if an employee’s work is of equal value compared to others. The law, though, recognises genuine reasons that can explain unequal pay.

Employment law recognises discrimination as direct or indirect, and also victimisation, and harassment. The protection covers all areas of employment including: recruitment, employment terms and conditions, pay, training, promotion and transfer, redundancy and dismissal. The Act protects all employees, short or permanent contracts, job applicants, trainees, contract workers, office holders, company directors and partners, those who are on secondment and the self-employed.

Employers are liable in an employment tribunal for acts of sex discrimination but so are the employees who carry out the discrimination. The Act makes employers ‘vicariously liable’ for acts of discrimination of their employees. Employers, though, have a defence if they can show they took all reasonable steps to prevent the discrimination. Employment lawyers call this the ‘statutory defence’.

Direct and indirect discrimination

Direct discrimination is unfavourable treatment of an employee because they have particular characteristics recognised by the Act or is perceived to have characteristics or an association with people with those characteristics – in this case gender. The motivation of the employer is not relevant.

Indirect discrimination is where a rule, practice, provision or criterion, implemented in the workplace and which applies equally to all persons, puts an employee at a disadvantage, compared to other employees, because of particular characteristics that includes their gender. Whether the discrimination is intentional or indeed obvious is not relevant.

As with direct discrimination, it is necessary to compare the employee’s situation with other colleagues who do not share their sex. Indirect discrimination can be objectively justified by an employer.

Harassment

Harassment is degrading, offensive, intimidating or distressing behaviour that creates a hostile working environment and is aimed at a worker because of the worker’s gender. It includes abusive language, excessive monitoring of work, and excessive criticism of someone’s work , etc. A tribunal’s judgement about harassment is partly based on what a ‘reasonable person’ says is offensive to the dignity of the victim. Employment law also protects people because, as stated, they are perceived to have a gender or is associated with a person with a particular gender. Also, in an extreme case, any worker who is not the target of harassment but who witnesses it, can lodge a discrimination case at an employment tribunal. If an employer is made aware of such harassment and does not take reasonable action to prevent it, then an employment lawyer could take legal action.

Victimisation

Victimisation occurs when a worker is treated badly because he or she made a complaint of discrimination under the Equality Act or if an employee was supporting a complaint or made it known they intended to support another worker making a discrimination complaint. Following employment legal advice would mean that an employer should not threaten to sack a worker who has volunteered to be a witness in a case brought under the Equality Act.

Employment law advice

An employer who prioritises flexible working requests from women, such as for childcare, is likely to disadvantage men. The best employment lawyers would advise that an employer should treat such requests on their individual merit, that flexible working should be available to all employees and such issues decided upon with regard to the needs of the business. An employer can specify that a job should be done on a full-time basis as long as the sex of the employee is not specified. If flexible working is brought up by an employee, the employer should consider reasonable adjustments or to make the job part-time.

An employment tribunal will consider the views of a person who believes they were the target of offensive behaviour and the defence of the person who allegedly did it. But the tribunal will also consider whether the employee’s feelings were reasonable.

It is illegal to ask a female job candidate or employee whether they are considering having children. This is because the employer is not likely to ask a man the same question. It is not indirect discrimination if an employer insists that for the needs of the business, a role can only be full-time despite the fact that this may disadvantage women with childcare responsibility. But it could be indirect discrimination if, when requested, the employer does not consider reasonable alternatives such as flexible working.

An employer can treat a women on statutory maternity leave more favourably than others. If such a women has been selected for redundancy, an employer must offer her any suitable vacancy before other employees.

Lawful discrimination

An employer can engage in direct discrimination when a person’s sex is an occupational requirement. This would include jobs in acting or religion. Positive action is permissible where an employer engages in action that favours a group that is under-represented in the organisation and where that group possess personal characterictics, e.g. race or sex listed in the Act.