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Summary of the law on SEX DISCRIMINATION

The Sex Discrimination Act 1975 (SDA) outlaws discrimination on the grounds of sex and marital status in employment, education, transport and the provision of goods and services.

This booklet is solely concerned with the employment aspects of the SDA.

DIRECT DISCRIMINATION

INDIRECT DISCRIMINATION

VICTIMISATION

HARASSMENT

TRIBUNAL CLAIMS

REMEDIES

Who does the Sex Discrimination Act 1975 (SDA) apply to and when?

The Sex Discrimination Act 1975 (SDA) applies to all discrimination in the workplace, such as, selection for a job, training, promotion, work practices, dismissal or any other disadvantage such as sexual harassment. If a worker is discriminated against in their contractual terms of employment, then the Equal Pay Act applies. Whist this booklet refers to women in the majority of examples, it should be noted that the law applies equally to both men and women.

Who is liable?

Responsibility for sex discrimination usually lies with the employer, but if another employee or worker is found to have discriminated, then the employer will be “vicariously” liable for them as well. This covers not only incidents of discrimination occurring in the actual work place, but may also extend to out of work activities such as Christmas parties and drinks in the pub after work. If the alleged discrimination is about the conduct of another employee, then it’s a good idea to name them on the Tribunal application as well as the employer.

What is direct sex discrimination?

Direct sex discrimination is when an employer treats a woman less favourably than a man, because of her sex or marital status. It is also direct discrimination to treat a woman less favourably because she is pregnant or has taken maternity leave. This includes a pregnancy-related illness. The employee bringing the claim has to make a comparison between how she was treated and how a man (either actual or hypothetical) would have been treated, except for cases of alleged pregnancy and maternity discrimination when a comparator is not required. It is irrelevant whether or not the employer intended to discriminate against them. Once the person has shown that the employer did discriminate against them directly, employers cannot offer a defence as there is none for these claims.

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

• In an interview for a job the employer only asks female 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 who takes time off for pregnancy or maternity leave is demoted when she returns to work

• A woman is not encouraged to meet clients or invited to social events to meet them. Instead a mainly male group is selected

What is indirect sex discrimination?

Indirect discrimination applies to policies and practices which, in reality, disadvantage one gender considerably more than another although on the face of it, they seem to apply to both sexes equally. For example, a requirement to work full time might be more of a bar for women than men. To prove indirect discrimination, Tribunals have to consider four questions:

• Has the employer imposed a provision, criterion or practice?

• Does it put women at a particular disadvantage when compared with men?

• Does it disadvantage that woman?

• Can the employer show that the provision, criterion or practice is proportionate to the aim they are trying to achieve?

Employers can defend indirect discrimination, but they have to show that the provision, criterion or practice:

• Can be objectively justified on grounds other than sex

• Corresponds to a real need on the part of the employer

• Is appropriate to meeting that need

• Is necessary to meet that need

Despite this clear and fairly stringent test, the courts have set out further tests, including the requirement to balance the needs of the employer and employee. These tests are not always easy to reconcile and anyone wanting to bring a claim will need specialist advice.

Examples of indirect discrimination are:

• Age bars, which can indirectly discriminate against women who often have taken time out from work to bring up children and therefore may acquire their qualifications later than men

• Any benefit which results from length of service may work against women who have taken time out from work to bring up their children

• Mobility clauses may discriminate. Often women are less able to relocate than men because of their family commitments or a reliance on their partner’s income as the primary wage earner

• Height or weight requirements which favour men rather than women

• Work that requires unsocial hours or a requirement to work full time may work against women with child care commitments

What is harassment?

There are three grounds that constitute unlawful harassment under the Act:

The first is when an individual is subjected to unwanted conduct relating to their sex that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Even if that individual is not the butt of the unwanted conduct but feels that their dignity has been violated or that an offensive environment has been created as a result, they 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 her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The third is when someone treats the woman less favourably because she rejected the unwanted conduct. “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:

• Physical harassment

• Unwanted sexual comments or personal comments about a woman’s appearance

• Non verbal harassment such as unwanted gestures or displays of pornographic pictures

The victim does not have to demonstrate any financial or other specific loss, such as a threat of dismissal. It is enough that her working environment has become intimidating, hostile or offensive. In one case a school laboratory assistant was subjected to constant suggestive remarks and conduct by two male colleagues as part of a campaign to persuade her to leave. The Tribunal decided that the woman did not have to produce evidence of a man having been treated differently, since the treatment that she received was clearly discriminatory by reason of its sexual character. Single incidents can constitute harassment, though generally speaking, a one off incident would have to be more serious. The law also says that employers who fail to take reasonably practical steps to protect employees from harassment by someone else if they knew it had happened on at least two other occasions will be liable for those acts.

What is victimisation?

Some women may be deterred from exercising their rights under the SDA or from supporting others who wish to exercise their rights in case they are victimised by their employer. The Act guards against this by making it unlawful for an employer to victimise an individual because she has brought a discrimination claim, given evidence in a discrimination case or made an allegation of sex discrimination (whether it has been upheld or not). To succeed in a victimisation case, the person has to show that they were treated less favourably than someone who had not taken any of these steps, and that their treatment was because they had pursued a discrimination case, had given evidence or had made allegations of discrimination. Employers can defend a complaint of discrimination if they can show that they took all reasonably practicable steps to prevent the discrimination occurring. It is rare for employers to succeed with this defence. But even if they do, the person who feels they have been victimised can pursue a claim against the individual employee.

Are there any exceptions?

There are three main circumstances when the Act does not provide protection against discrimination:

• The genuine occupational qualification (GOQ)

• Positive action

• Employment for the purposes of religion

Genuine occupational qualification (GOQ)

Employers are allowed to discriminate under the Act when a person’s sex is a “genuine occupational qualification” (GOQ) for the job. For instance, if the job needs either a man or a woman for reasons of authenticity, perhaps for a job as an actor or a model. Or, for reasons of decency or privacy, either a man or a woman may be needed if 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. A GOQ exception will not apply if an employer already has enough staff of the other sex who could take on the duties of the job without too much inconvenience.

Positive action

Positive action means giving preferential treatment to an individual or group of people to prevent, or compensate for, past disadvantages suffered by that individual or group. It is not the same as positive discrimination, which involves treating people more favourably on grounds of sex and is unlawful. The SDA states that employers can:

• provide training to people of a particular sex which would fit them for particular work if in the preceding 12 months there were none (or very few) of them doing that sort of work, or

• run a discriminatory recruitment campaign to encourage members of a particular sex to apply for certain kinds of work, as long as there were none (or very few of them) doing that particular kind of work in the preceding 12 months

Employment for the purposes of religion

Sex discrimination is also lawful in relation to employment for the purposes of an organised religion, where employment is limited to one sex so as to comply with “the doctrines of the religion or to avoid offending the religious susceptibilities of a significant number of its followers.”

This exemption is limited effectively to employment by religious organisations such as churches or mosques.

Is it easy to prove a claim?

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 on the grounds of her 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 the grounds of her gender. 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. Not surprisingly, it is rare to find overt evidence of direct 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 usually will 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 claimant makes a note of the key incidents and the dates on which they took place.

Can employees serve a Questionnaire?

Employees are allowed to serve a Questionnaire on their employer to obtain information or documents in order to ascertain the strength of their claim, and to establish as far as possible, what the facts are and the reasons for her treatment. This can be used by the claimant as evidence at the Tribunal. If the employer fails to reply, or delays doing so or provides an inadequate response, then the Tribunal may draw an inference of discrimination from that. Serving a Questionnaire does not count as raising a formal grievance.

Tribunal claims and time limits

For claims that arise after 6 April 2009, the time limit for proceedings is 3 months. No extensions are available unless the Tribunal considers it just and equitable in the circumstances of that case. This is relatively rare. Where the action complained of started before 6 April 2009, employees have to tell their employer in writing that they have a grievance and then wait 28 days to give them time to respond. Claimants must complain to a Tribunal within three months of the act complained of. This time limit is extended by three months, however, to allow the statutory grievance procedure to take place. Unless there are special circumstances (such as threats or continuing harassment by the employer) the employee must write to the employer raising a grievance and wait for 28 days before bringing a discrimination claim to a Tribunal. This applies even if the complaint relates to disciplinary action short of dismissal or another grievance. If they do not do that, the Tribunal will not be able to hear the claim. The grievance must be lodged within 3 months of the act complained of, in order to benefit from the limitation extension. Where the action complained of started on or after 6 April 2009, the employee should still raise a grievance but even if they do, the time limit is not extended. There are also time limits that apply to serving the Questionnaire. If it was lodged before the Tribunal proceedings started, then it must be served on the employer within three months of the act complained of. If it was sent to the employer after the Tribunal proceedings started, then it must be sent within 21 days of the Tribunal application being lodged. If the claimant misses these time limits, they can still serve their Questionnaire but they will need the Tribunal’s permission to do so.

What remedies are available?

There are three remedies available to a Tribunal:

• Declaration

• Compensation

• Recommendations

Declaration

A declaration states the rights of the claimant and sets out how the employer and/or any employee involved has acted unlawfully.

Compensation

Compensation can be awarded for injury to feelings and financial losses, if there are any. There is no limit on 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. The person’s age and vulnerability may be considered, and also the severity of the discrimination. 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. Compensation may be reduced if the claimant failed to follow the statutory grievance procedure (if applicable).

Recommendations

The Tribunal’s powers to make recommendations are limited to actions that will benefit the individual employee and lessen the effect of the discrimination on her. They must be practical, have a time limit and avoid or reduce the effect of the discrimination that she complained about. For instance, they might include a requirement for all members of management to be trained in equal opportunities, or for the employee who has been discriminated against to be provided with additional training or mentoring, or to be invited to interview in relation to future job applications.

If the employer fails to comply with a recommendation, then the Tribunal may order the compensation to be increased.

What is the gender equality duty?

Public authorities have a duty to pay “due regard” to promoting gender equality and eliminating sex discrimination. This means that service providers and public sector employers have to design employment and services with the different needs of women and men in mind. It requires public bodies to set their own gender equality goals in consultation with their service users and employers and to take action to achieve them.

Discrimination on the grounds of gender reassignment

It is unlawful for an employer to discriminate against another person on the grounds that they intend to undergo, are undergoing or have undergone gender reassignment. This covers less favourable treatment due to an employee’s absence for gender reassignment treatment.

Thompsons provides updates to trade union activists on the law, the series of updates includes:

• Unfair Dismissal & Redundancy

• Stress at Work

• Equal Pay

• Sex Discrimination

• Pregnancy & Maternity

• Sexual Orientation Discrimination

• Accidents at Work

• Strain Injuries

• Disability Discrimination

• Working Time

• Family Friendly Rights

• Race Discrimination

• Religion or Belief

• Age Discrimination

Thompsons’ website includes regular legal updates in the e-training section of the website.

The information contained in this booklet is not a substitute for legal advice. You should talk to a lawyer or adviser before making a decision about what to do. Thompsons Solicitors is regulated by the Solicitors Regulation Authority.

Published May 2010