Sex Discrimination

If you feel that you have been discriminated agains at work in favour of another person because of your sex then you may have a claim against your employer.

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A SUMMARY OF THE LAW

Sex discrimination falls into 4 categories: direct, indirect, harassment and victimisation.

Unlike unfair dismissal legislation which protects ‘employees’ only, sex discrimination can be claimed by agency workers, other contract workers and even job applicants.

Direct sex discrimination

This is where a person is treated less favourably than others because of his or her sex.

In order to claim direct sex discrimination you will need a comparator of a different sex to measure your treatment against. This comparator can be hypothetical but their circumstances must not be materially different from the claimant’s.

It is important to remember that not every difference of treatment will necessarily be “less favourable.” If, for example, men and women are required to wear difference uniforms then this may not equate to less favourable treatment, provided the standard are equivalent.

The less favourable treatment need not be because of your actual sex, but instead the sex which you are perceived to be. You can also bring a direct sex discrimination claim even where the treatment is not related to your own sex but instead the sex of someone with whom you associate.

The Equality Act 2010 (the “Act”) makes it clear that affording women special treatment in connection with pregnancy or childbirth will not generally amount to sexual discrimination If a man was to use a real comparator who is pregnant, it may be that the Employment Tribunal would substitute this for a hypothetical female comparator who is not pregnant. This having been said, deliberately inflating the selection scoring of an employee on maternity leave has been held to amount to unfavourable treatment of a male colleague who was also being considered for redundancy.

Indirect sex discrimination

Indirect sex discrimination occurs where an employer applies a provision, criterion or practice across the board which puts or would put you at a particular disadvantage because of your sex. Even if the provision is apparently unbiased given that it is applied to all employees regardless of their sex, if it has the effect of disadvantaging you given your sex this could amount to indirect discrimination.

Employers do have a defence when it comes to indirect sex discrimination: that the discrimination can be objectively justified.

Objective justification would require your employer to demonstrate that either the treatment or the provision criterion or practice is a proportionate means of achieving a legitimate aim. Legitimate aims could include business needs and economic efficiency. Whilst tribunals have made it clear that discrimination cannot be legitimized through financial reasons alone, they can be a factor.

Employers do have another defence to an sex discrimination claim: that the sex specifications are down to an occupational requirement e.g. the need for authenticity for an acting role.

Harassment

There are 3 types of harassment when it comes to sex discrimination. All of the below equate to discrimination where the conduct has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for you. When determining whether the conduct has such an effect, both your subjective perception and whether it is objectively reasonable for such conduct to have that effect will be factors to consider, along with the other circumstances of the case..

• Harassment related to sex (e.g. making gender based jokes).
• Sexual harassment (i.e harassment of a sexual nature, e.g. an employee touching another employee’s bottom).
• Less favourable treatment because the employee rejects or submits to harassment (e.g. your boss sexually harasses you and you make it clear that you are uncomfortable, which causes you to be demoted). .

See the harassment link for more information.

Victimisation

The victimization provisions in the Equality Act protect employees from being discriminated against for bringing proceedings under the act itself or giving evidence in relation to the act.

Making a claim

If you think you may have been discriminated against, you can submit questions to your employer by way of a questionnaire. This is a statutory procedure (set out in s. 138 of the Equality Act) although the questions need not be set out in the form prescribed in the act. Whilst it is not compulsory for your employer to reply to the questionnaire, if they fail to do so an employment tribunal could draw inference from this.

Discrimination Questionnaires are in fact due to be abolished in either October 2013 or April 2014 as section 66 of the Enterprise and Regulatory Reform Act will repeal section 138 of the Equality Act 2010. The argument behind the abolition of questionnaires is that they do not promote early settlement as much as may be expected and collating the information can be onerous. This could disadvantage employees, however, as without the questionnaires; you may have to initiate formal proceedings to seek documentation from your employer.

Before submitting an employment questionnaire, it may be advisable to consider raising a formal grievance to see if there is a way of resolving the matter internally first.

You have 3 months less one day from the date of the last act of discrimination to bring a claim, although acts occurring prior to this 3 months can be a factor in such a claim if they are part of a continued course of conduct.

If you were to be successful in a discrimination claim, the tribunal could make one or a combination of the below awards:

• Compensation
• A declaration of the rights of the parties.
• A recommendation with regard to the steps your employer should take to reduce the adverse effect of the discrimination.