A summary of the law on sex discrimination

The act covers all forms of discrimination in the workplace including; selection for a job, training, promotion, work practices, dismissal, sexual harassment or any other disadvantage because of sex.

The act covers all forms of employment and applies to apprentices, those working under a contract of employment and the self-employed working under a contract personally to do the work. It also applies to applicants for a job.

Ex-employees can also make a claim against a former employer if they are complaining about something that was closely connected to their employment.

The employer is generally liable for acts of discrimination, harassment and victimisation in the workplace. However, individual workers may also be liable if, for example, they have subjected a colleague to harassment related to sex.

Sex discrimination can arise in relation to:

• The arrangements made for deciding who should be offered employment such as shortlisting
  and interviews
• The terms upon which employment is offered
• Refusing or deliberately omitting to offer employment
• Accessing opportunities for promotion, transfer, training or other benefits, facilities or services
  are offered
• Dismissal or any other detriment.

Direct sex discrimination

Direct sex discrimination occurs when an employer treats someone less favourably because of sex.

In order to determine whether someone is directly discriminated against, a comparison has to be made with someone of a different sex and whose circumstances are the same or not materially different.

The definition is wide enough to cover those who are also discriminated against because they are perceived to be of a particular sex or because they are associated with someone of a particular sex.

The following situations and examples could give rise to a claim for direct discrimination:

• In an interview for a job the employer only asks women applicants about their domestic circumstances
• A man with inferior qualifications and/or less experience than a woman is appointed to the job or the promotion for which they both applied
• A woman is told that she would not be considered for a job because it is “dirty work” or because there is “a lack of decent toilet facilities”
• A woman is not encouraged to meet clients or invited to social events to meet them. Instead, mainly men are selected.

Indirect sex discrimination

Indirect discrimination arises when an employer applies a provision, criterion or practice (PCP) which puts people of one sex at a particular disadvantage compared to those of another sex and which the employer cannot justify. For example, a requirement to work full time might be more of a bar for women than men because more women work part time than men.

Employers can only defend indirect discrimination if they can show that it was “a proportionate means of achieving a legitimate aim”. This essentially requires achieving an objective assessment of the needs of the business as compared to the discriminatory effect on the worker.

The provisions on indirect discrimination do not apply to pregnancy and maternity. However a claim of indirect discrimination for pregnancy and maternity may amount to indirect discrimination because of the protected characteristic of sex.

Harassment

There are three types of unlawful harassment under the act.

The first is when an individual is subjected to unwanted conduct related to sex that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Witnesses to unwanted conduct and whose dignity has been violated, or who consider that an offensive environment has been created, are also protected by the legislation.

The second is when someone engages in unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The third is when someone treats an individual woman less favourably because they rejected or submitted to sexual harassment or harassment related to gender reassignment or sex. A claim on this ground depends on sex, sexual harassment or gender related harassment having occurred.

“Conduct” is only regarded as harassment when all the circumstances are taken into account (including the perception of the woman at the receiving end of it) and if it is reasonable to conclude that it could have had that effect.

Examples of sexual harassment include the following:

• Unwanted touching
• Unwanted sexual comments or personal comments about a woman’s appearance
• Non-verbal harassment such as unwanted gestures or displays of pornographic pictures.

Victimisation

This occurs when an employer subjects a person to a detriment because they have done or may do a protected act.

A protected act includes:

• Bringing proceedings under the act or previous discrimination legislation.
• Making allegations of a breach of the act or previous discrimination legislation.
• Giving evidence or information in connection with proceedings that someone else has brought.
• Raising a grievance or giving evidence in someone else’s grievance.

The person complaining of victimisation has to have acted in good faith when doing a protected act. A false allegation will not amount to a protected act.

There are two exceptions when the act does not provide protection against discrimination:

Occupational requirement (OR)

The act does not apply when the employer can show that there is an occupational requirement to do with the nature or context of the work which means they need to recruit someone of a certain sex, as long as they can show it is a proportionate means of achieving a legitimate aim.

The occupational requirement applies only to direct discrimination in recruitment, promotion, transfer and training and not to the way in which an employer affords access to benefits, facilities or services.

Examples of when the occupational requirement may apply include reasons of decency or privacy, for instance where the job involves physical contact or people may be undressing (say, in a changing room). Or the job may involve providing personal services such as rape counsellors.

Religious requirement

Discrimination because of sex is also lawful in relation to employment for the purposes of an organised religion. Organised religion is not defined in the act but case law has established that it should be applied very narrowly.

In order to satisfy the religious requirement, the employer will have to show that it is directed to comply with the doctrines of the religion, or because of the nature and context of the employment it avoids conflict with the strongly held religious convictions of the religion’s followers by favouring a person of a specific sex. The requirement must be proportionate.

The Equality and Human Rights Commission’s Employment Code states that the occupational requirement exception should only be used for a limited number of posts such as, minsters of religion.

Proving sex discrimination is not straightforward. A woman complaining of discrimination has to prove, on the balance of probabilities that her employer discriminated against her because of sex. This means that the tribunal does not have to be certain, but they have to think it more likely than not, that her treatment was on those grounds.

Once an employee has established facts from which a tribunal could conclude that there had been discrimination, then the burden shifts to the employer to show that they did not discriminate against her. This is known as the reversal of the burden of proof.

Not surprisingly, it is rare to find overt evidence of sex discrimination. Few employers are prepared to admit that they have discriminated against someone and those who are aware of the law may have taken steps to appear to have acted lawfully.

Whether or not discrimination can be proved will often depend on what inferences a tribunal can draw from the primary facts. However, there will usually need to be some factual basis upon which the tribunal can make its finding. It therefore helps if the claimant can produce any relevant letters or documents. In cases of sexual harassment, it is useful if the worker keeps a diary note of the key incidents including what was said or done, when and where the incidents happened and if there were any witnesses.

Workers can ask an employer questions about the discrimination they have been subject to. ACAS (Advisory, Conciliation and Arbitration Service) has produced non-statutory best practice guidance ‘asking and responding to questions of discrimination in the workplace’ which is available online. This includes a suggested template format for asking questions as well as guidance on the type of questions that can be asked and how an employer should respond.

There is no time limit restriction and questions can be put to the employer at any time before or after a tribunal claim is lodged. Although there is no obligation on an employer to respond, a tribunal can take a failure to respond and any evasive or equivocal replies into account when deciding if there has been sex discrimination.

Claims must be brought within three months less one day of the act of discrimination that the person is complaining about. If the discrimination is in a form which continues, for example a continuing exclusion from a benefit or a continuing course of harassment, then the three-month time limit runs from the last act of discrimination.

In exceptional circumstances, the three month time limit may be extended if a tribunal believes that it is just and equitable to do so.

Early conciliation (EC) applies, which means that ACAS must be contacted before the tribunal time limit expires. An early conciliation form can be completed at www.acas.org.uk.

An early conciliation certificate will be issued after the period of EC (which usually lasts between two and four weeks) which has an EC number. This must be put on the employment tribunal claim form (ET1). If it is not, the tribunal claim form will be rejected and the claim may go out of time.

There are three remedies available to a tribunal.

Declaration

A declaration is a statement of the rights at the end of a claim, for instance that a worker has been subject to direct discrimination.

Compensation

Compensation can be awarded for injury to feelings and any financial losses, if there are any. The amounts will depend on the facts of the case and on individual circumstances. There is no statutory limit to the amount of compensation, which can include, loss of earnings (past and future), loss of pension, interest and any other outlays associated with the discrimination.

The amount of compensation for injury to feelings can vary enormously. Generally injury to feelings fall into one of three bands: lower, middle and upper, depending on the severity of the discrimination.

Aggravated damages (not applicable in Scotland) can also be awarded if the tribunal is satisfied that the employer has behaved in a high-handed, malicious or insulting way which has aggravated the injury to the claimant’s feelings.

Claimants can also ask for compensation for personal injury if they have been seriously affected by the discrimination, particularly in harassment cases which can lead to illness and depression. If so, claimants need to produce a medical report to support their claim.

Recommendations

The tribunal can make recommendations for the purpose of preventing or reducing the effect of the discrimination on the claimant. This means that recommendations will not normally be made if the claimant has resigned or has been dismissed, which is often the case.

Examples of recommendations tribunals have made include requiring an employer to:

• Move an individual found to have committed an act of sexual harassment to another post
• Provide equal opportunities training to the person who had victimised the individual
• Circulate the tribunal’s liability and remedy judgments to all those involved
• Destroy an expired caution and related disciplinary documents.

A tribunal cannot recommend that a person be given a job in a case where an employee successfully claimed they were discriminated against in a promotion exercise, for example. This is because that would amount to positive discrimination which is unlawful under the act (and is different to positive action).

If the employer fails without reasonable excuse to comply with a recommendation, then the tribunal may order the compensation to be increased.

Public bodies such as local government, the NHS and those carrying out public functions are under a duty to consider equality when making day-to-day decisions both in terms of service delivery and employment. This consists of a general duty and specific duties.

The general duty has three aims and requires public bodies to have due regard to the need to:

• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the act
• Advance equality of opportunity between people from different groups
• Foster good relations between people from different groups.

The specific duties are designed to help public bodies comply with the general duty. Broadly, these require specified public bodies to publish information on how the general duty is being met and to prepare and publish one or more equality objectives.

Separate regulations setting out the specific duties apply to devolved public authorities in England, Wales and Scotland. Trade unions should check that the employer is complying with the specific regulations according to whether the devolved public authority is in England, Wales or Scotland.

Sex is a protected characteristic. The act allows an employer to treat a person with a protected characteristic more favourably in the process of recruitment and promotion if the employer reasonably thinks a person with a protected characteristic suffers a disadvantage connected to the protected characteristic, or there are fewer people with a particular protected characteristic employed. The more favourable treatment must be aimed at encouraging participation of those with a protected characteristic who are underrepresented or put at a disadvantage.

The provision effectively allows an employer to choose a candidate with a protected characteristic in favour of one who does not have a protected characteristic, provided that:

• The person is “as qualified” as the other candidate
• The employer does not have a recruitment or promotion policy of treating persons of the underrepresented group more favourably
• The more favourable treatment is a proportionate means of achieving a legitimate aim (the legitimate aim being encouraging participation and overcoming disadvantage).

These provisions are voluntary. A worker cannot bring a claim because the employer did not apply positive action during the recruitment or promotion process, although they may still be able to bring a claim if they were discriminated against during it.

Anyone who is married is also protected under the act. Marriage covers the union of two people of the same sex legally recognised in the UK as a marriage. Single people, those who are unmarried, divorced or in a cohabiting relationship are not protected.

Unlike other discrimination legislation, there is no protection from direct discrimination by association or perception or harassment for those who are married.

It is unlawful for an employer to discriminate against another person because of the protected characteristic of gender reassignment.

This includes less favourable treatment due to an employee’s absence for gender reassignment treatment, or because they are either submitted to, or rejected, harassment related to gender reassignment.

The act covers people who propose to undergo, are undergoing or have undergone a process to reassign their sex. The ‘process’ is defined as the personal process involving a change in attributes traditionally assigned to a particular sex and is not dependent on undergoing a medical process.

The definition is wide enough to cover transsexuals but is not intended to cover transvestites. However, a worker who is perceived to be undergoing or proposing to undergo gender reassignment will be protected.