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Employment Law Services Ltd

Sex Discrimination

The Equality Act 2010 (formerly the relevant law was the Sex Discrimination Act 1975) prohibits direct discrimination, indirect discriminationharassment and victimisation on the grounds of gender, gender reassignment and marital and civil partnership status. The legislation applies equally to men and women, so members of both sexes are protected from sex discrimination. With regard to protection on grounds of marital, or civil partnership status the legislation protects those that are married or in a civil partnership, but NOT unmarried people (& those not in a civil partnership).



The Equal Pay Act 1970 deals with discrimination in contractual terms and conditions, commonly in relation to contractual pay entitlements. The Sex Discrimination Act is used to address discrimination in relation to discretionary and non-contractual matters, such as promotion, access to training, ex-gratia payments, and general workplace, work practice issues, including sexual harassment, job offers, interviews and dismissal (including redundancy selection).



Direct Sex Discrimination



This type of discrimination happens when a woman (or man) is:-

a) Treated detrimentally (the legislation refers to “less favourably”) compared to the treatment accorded to a number of the opposite sex (or an unwanted person or non-civil partner),



b) That the detrimental treatment afforded to the individual was on the grounds of he/his sex (or marital or civil partner status), and



c) That the comparison drawn with the member of the opposite sex is such that the circumstances are the same or not materially different.



To establish that the cause of the detrimental treatment was “on grounds of sex” it is not necessary to prove that the difference of sex was the only factor in the difference in treatment, but simply that it was the effective and predominant cause. An example of how this distinction can arise is given in the case of Rees v. Apollo Watch Repairs Plc (1996) in which the individual claiming discrimination had been on maternity leave, her maternity leave replacement was better at her job than she was and so the individual claimant was dismissed. However, the underlying facts and cause was her pregnancy. Although this was not the sole cause of the dismissal, it was an effective and predominant cause. So the claimant succeeded in establishing discrimination on the grounds of her sex.



The motives of the person or people committing the discrimination are irrelevant to the question of liability. If there is no actual comparator available, the employment tribunal will consider what treatment a hypothetical comparator of the opposite sex would have received in deciding if the detrimental treatment was “on the grounds of the complainant’s gender.



Indirect Sex Discrimination



This type of discrimination happens when an employer applies to a woman (or a man):-



a) A provision, criterion or practice that is or would be applied equally to a number of the opposite sex ( or unmarried person if the claim is on the basis of marital status), which



b) Puts a member of the claimant’s sex (or person of the claimant’s marital status) at a particular disadvantage when compared with a person of the opposite sex (or different marital status), which



c) Cannot be established to be a proportionate means of achieving a legitimate aim.



A “provision, criterion, or practice” covers a wide range of matters, such as policies and procedures, work practices, whether contractual or discretionary. So employers need to note that indirect discrimination can occur in a very wide range of circumstances at work.



If an employer is going to defend an indirect discrimination claim, it will have to establish that the “provision, criterion, or practice” was objectively justified. The tribunals will weigh on the one hand the detriment to the members of the sex that are prejudiced by the provision, against the employers need for the provision and need to meet their particular business need in the way they have adopted in that provision.



Sexual Harassment



Sexual harassment occurs in one of four identified forms:-

  1. “sex-based” harassment is when, on the grounds of a person’s sex, a person (the harasser) engages in unwanted conduct that has the purpose or effect of



    a. Violating her/his dignity, or



    b. Creating an intimidating, hostile, degrading, humiliating, or offensive environment for her/him.
  2. Harassment “of a sexual nature” which has the effect or purposes as listed above 1. A. And b. This would include displaying sexual images or sending such images by e-mail around an office,
  3. Sexual harassment “on the grounds of rejection of or submission to harassment”.
  4. Sexual harassment “on the grounds of gender reassignment status”. This would include derogatory remarks about a person that has undergone a sex change, or in the process of going through gender reassignment treatment.

Victimisation



Victimisation in this context is really a form of retaliation. The protection against this behaviour is aimed at ensuring that people that have honestly made an allegation of sex discrimination (or supported someone else in making such an allegation) are not deterred or penalised for doing so. Any person that s treated detrimentally because they have alleged, pursued a claim or supported or assisted someone else in making an allegation or claim of sex discrimination is themselves the subject of victimisation.



Once again the motivation of the person causing the victimisation is not relevant to the question of liability for this type of discrimination.



The law on sex discrimination protects not just employees, but also contract workers, between business partners, and job applicants. Protection extends to cover all aspects of an individual’s work and work practices (apart from pay, and “terms and conditions”). So this extends to provision and access to training, promotion, discretionary benefits, provision of information and consultation, selection procedures, and dismissal.



Employers are responsible for their staff, and this extends to liability for any discriminatory conduct committed by their staff. The employer will only be able to defend itself from such liability if it can establish that it took such steps as were reasonably practicable to prevent the employee from committing the act(s) that have been complained about.



In order for an employer to have any prospect of avoiding liability for any sex discrimination committed by its staff, and also to demonstrate that it takes these issues seriously, it must introduce and implement an Equal Opportunities Policy (see PAYG Equal Opportunities Policy). It is also vital that all relevant managers are properly trained in the correct and fair operation of the policy.

 

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