Sex discrimination at work

Under the Equality Act 2010 (the Act) individuals are protected against discrimination in the workplace on grounds of of disability, race, sex, sexual orientation, religion or belief, age, pregnancy, maternity, gender reassignment and marital status. Protection is given to a wider group of individuals than the traditional “employee”.  Anyone who is contracted to do work personally will also be protected.  It is important to note that the protection goes beyond those actually in work, also protecting applicants for jobs and in certain circumstances, former workers.

An employer will be vicariously liable for the discriminatory acts of its’ employees unless it has taken reasonable steps to prevent such conduct taking place.

The different types of sex discrimination

There are various types of sex discrimination and other unlawful conduct under the Act:

• direct sex discrimination,
• indirect sex discrimination,
• sexual harassment,
• victimisation, 

Direct sex discrimination

Direct sex discrimination occurs when there is less favourable treatment because of sex.  Different is not necessarily less favourable.  The EHRC Code of Practice gives the example of a bus company that adopts a policy that all female drivers must re-sit their theory and practical tests every five years to retain their category D licence. Such a policy is direct sex discrimination.

This definition encompasses both associative and perceived sex discrimination as it does not need to be because of the claimant’s protected characteristic. This therefore covers the situation where the employee is treated less favourably because of the sex of someone with whom they associate, or because of their perceived sex.

Indirect sex discrimination

The concept of indirect sex discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a particular sex.  The definition provides that a person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (PCP) which puts or would put those having a particular sex at a particular disadvantage and that PCP is not a proportionate means of achieving a legitimate aim.  

Here, the EHRC Code of Practice provides the example of a bus company adopting a policy that drivers on two particular routes must re-sit the theory test.  Although this is apparently neutral, it turns out that the drivers on these two routes are nearly all women.  This could amount to indirect sex discrimination unless the policy can be objectively justified.

In establishing whether a PCP places men/women at a particular disadvantage, the starting point is to look at the impact on people within a defined pool for comparison.  The pool in a particular case may consist of a single workplace, the population within the local area of a workplace or even the whole economically active population of the United Kingdom.

A pool will depend on the nature of the PCP being tested.  If the claimant is challenging a recruitment criterion, the pool will usually consist of those people who could be affected by it.  That is, those who would be eligible for the job but for the criterion in question.  On the other hand, if the claimant is challenging a practice or policy applied throughout the employer’s organisation, then the pool will usually be the whole workforce.

The PCP that puts members of the protected group at a particular disadvantage must also put the claimant at a disadvantage.  It is not enough merely to establish that they are a member of the protected group.  Therefore, a woman without family responsibilities could not establish indirect discrimination even if she shows that the burden of childcare makes it more difficult for women than men to fit into the employer’s long hours work culture.

Objective justification

Even if a claimant establishes that a PCP puts one sex at a particular disadvantage, it will not be indirectly discriminatory if the employer can show that it is a “proportionate means of achieving a legitimate aim”. This is known as the ‘objective justification’ test.

The approach generally taken by Tribunals is to split the justification issue into two questions:-

• Can the employer establish that it was pursuing a legitimate aim?
• Can the employer establish that the measures taken to achieve that aim were proportionate?  To do this, Tribunals must effectively carry out a “balancing exercise” to evaluate whether the business needs relied on by the employer outweigh the discriminatory impact.  The key is whether the aim could reasonably be achieved by less discriminatory measures.

In a Greek case, the ECJ found that a minimum height requirement of 1.7 metres to join the Greek police was not a proportionate means of achieving the legitimate aim of enabling the effective accomplishment of the various functions of the police force. This indirectly discriminated against women because they were more likely to be under 1.7 metres tall.

Sexual harassment

Harassment in the workplace is often thought to be limited to office “banter” or misplaced comments, but it is more far reaching than this.  Harassment can range from bullying to apparently “meaningless” comments.  It can undermine confidence, lead to stress and affect the performance of all those involved.

The general definition of harassment is that A harasses B if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Related to

By using the wording related to the protection is given to those who are offended by conduct even though it is not directed at them. For example, a man can be offended by a colleague using misogynistic language.

Unwanted

The conduct must be unwanted. It will not be necessary for the complainant to have previously indicated that they did not want such conduct; it will be for a Tribunal to assess whether the conduct is in fact unwanted.  There is therefore no right for would be harassers to “test the water”, to establish whether conduct is unwanted, without risking a harassment claim.  A one off incident can therefore amount to sexual harassment.

The conduct must have the purpose or effect of violating B’s dignity or creating a hostile environment – the tribunal has to consider whether it is reasonable for the conduct to have that effect which avoids liability arising where B Is hypersensitive.

Workplace sexual harassment examples

An example of workplace sexual harassment was found by a Tribunal in a case where a waitress was asked to wear a top showing more cleavage than she was comfortable with and told not to be a “prude” and was also asked to wear red lipstick to “tart herself up a bit”. The Tribunal concluded that the remarks about showing a bit of cleavage and tarting herself up amounted to harassment.

Victimisation

An employer victimises an employee if it subjects the employee to a detriment because the employee has done, or might do, a protected act.

Protected acts are:

• bringing proceedings under the Act;
• giving evidence or information in connection with proceedings under the Act, regardless of who brought those proceedings;
• doing any other thing for the purposes of or in connection with the Act;
• alleging that A or another person has contravened the Act.

Our expertise

We advise on all aspects of employment law including on issues related to sex discrimination in the workplace. We help employers to put in place the policies and procedures to support their employees and business with confidence. We advise on how to prevent issues arising and how to handle them if they do through our employment investigations service.

We use our exceptional breadth and depth of experience to give clients personalised advice to help manage risk and resolve issues as well as bespoke training tailored to your needs together with the use of our independent HR consultants to put in place systems to monitor, review and minimise the risk of claims. Please contact Michael Powner or your usual Charles Russell Speechlys contact if you would like to get in touch.