Employment law – Sex discrimination
What is sex discrimination?
Sex Discrimination, in the context of employment law, is where an employer discriminates against someone because of their sex. This is prohibited by the Equality Act 2010 (“the Act”). There are 4 main types of sex discrimination: direct discrimination, indirect discrimination, harassment and victimisation. These are explained in more detail below.
Who is protected by the Act?
Anyone in an employment situation is protected from discrimination under the Act. This includes:
- employees of a company;
- people working through an agency;
- contractors, freelancers and the self-employed;
- people doing work experience or apprenticeships;
- partners and directors.
The protection applies to all stages of employment including recruitment, promotion and if you are dismissed.
Direct discrimination occurs when an employer treats or would treat an employee less favourably because of their sex.
An example of this could be an employer giving a male employee a promotion over a female employee, even though the male has less experience and qualifications. The female in this situation may be able to claim that her employer has directly discriminated against her because of her sex. A male employee can make exactly the same claim if the situation was reversed.
One exception to direct discrimination is in terms of the treatment of women who are pregnant or in connection to child birth. A man would not be able to argue that a woman (who is pregnant or has a child) has received special treatment and he, too, should have been entitled to this treatment. It is unlikely that a male in this situation would be found to have been discriminated against.
Indirect discrimination may occur when your employer applies a “Provision, Criteria or Practice” (PCP) to everyone (including those of the opposite sex) but puts certain employees of the same sex at a particular disadvantage.
An example of indirect discrimination would be if a job advertised for applicants who are 6 feet tall or over. This provision would apply to all applicants but women would be at a disadvantage as it is less likely they will be over 6 feet tall. Another example of this could be where an employer has a policy of early working hours and that it applies to all staff. Although it does not appear to be discriminatory at first sight (therefore not direct discrimination), it has the potential of putting, for example, women at risk as they are often responsible for dropping children to school in the morning.
However, an employer can justify indirect discrimination if they can show that it is a “proportionate measure of achieving a legitimate aim”. An employer would need to show that there are reasonable business needs for the decision to discriminate which will not be easy. A desire to save money has been found not to be a legitimate aim.
Who is liable for the discrimination?
Your employer may be liable for discrimination if they have directly or indirectly discriminated against you. They are also liable for discrimination on the part of another of their employees, such as a manager. If an individual has discriminated against you, you may also have a claim against that person for damages, as well as your employer.
Instances where sex discrimination may be lawful
There are certain circumstances where sex discrimination may be considered lawful. These are:
- when a person’s sex is an Occupational Requirement (this includes where the employment is within organised religion or the armed forces);
- when there has been “Positive Action”. Positive action can occur if an employer (or recruiter) believes there is an unbalanced workforce, and one sex is therefore under-represented. If this is the case, they may be able to show that they have used positive action to hire someone with the under-represented characteristic.
How to bring a sex discrimination claim
If you feel that you have suffered discrimination or harassment because of your sex, you should first consider raising a grievance with your employer. This may be done informally with a line manager first but if the issues are not resolved, a formal grievance can then be made. This is usually made in writing and your employer should organise a meeting following your complaint to discuss the issues.
If, after going through the full grievance procedure including any appeals, you are not satisfied with the outcome, you could bring a claim against your employer in the employment tribunal. Any claim in the Employment Tribunal will need to be submitted within three months less one day of the discriminatory act. It is now mandatory to go through ACAS’s early conciliation scheme before you can submit a claim to the tribunal.
In extreme cases of sex discrimination, you may also be entitled to resign and claim constructive dismissal.
An employment tribunal can award one or more of three remedies if it finds that an individual has been a victim of sex discrimination.
1. A declaration, which states what the rights of the parties are;
2. Compensation (further details below).
3. A recommendation that the employer should take certain steps to remove or reduce the effect of the discrimination.
What damages could you recover?
As well as a claim for financial loss, the Court of Appeal have set out 3 bands of compensation guidelines for injury to feelings, depending on the seriousness of the case. These are commonly known as the ” Vento” guidelines, and from 6th April 2021, they are:
TOP BAND FOR THE MOST SERIOUS CASES: £27,400- £45,600 (although it can exceed this in exceptional cases);
MIDDLE BAND: £9,100- £27,400
LOWER BAND FOR LESS SERIOUS CASES (e.g. a one-off or isolated incident of discrimination): £900 – £9,100
You should always take professional advice if possible, before making a claim.
It is for the person making the claim to establish that discrimination has occurred. The employee has to prove discrimination by the employer ‘on the balance of probabilities’.
This means that, although a tribunal might have doubts as to whether the employer discriminated, as long as the tribunal more than half believes that discrimination has incurred, it must decide in favour of the employee.
Once an employee has established facts from which it may be presumed that discrimination has occurred, it is up to the employer to prove that no such discrimination has in fact occurred.
Whether or not discrimination can be proved will often depend on what inferences a tribunal can draw from the primary facts. If they point to the possibility of disability discrimination, the tribunal may look to the employer for an explanation that proves there was no discrimination. If no such explanation is put forward or if the tribunal finds the supposed explanation inadequate or unsatisfactory it is open to the tribunal to infer that the discrimination was on the grounds of disability.
Raising a grievance
If you are still in employment and you cannot resolve the matter informally with your line manager, then it is best to first lodge an internal grievance. Your employer will then be obliged to convene a meeting without unreasonable delay to discuss your grievance. You may, however, still be able to bring a claim in the Employment Tribunal whilst you are still employed.
If you have already been dismissed and you think you have been discriminated against, you can lodge a claim for unfair dismissal and/or discrimination in the Employment Tribunal.
The Act imposes strict time limits throughout the procedure for bringing a case for sex discrimination. Good cases can be lost before they start through hesitation or delay.
If you suspect that you have been discriminated against by your employer, you should take advice as soon as possible.
The time limit for making a claim for sex discrimination to the employment tribunal is three months less one day from the last act of discrimination. It is now mandatory to go through ACAS’s early conciliation scheme before you can submit a claim to the tribunal.
A discriminatory act may extend over a period of time so that it may be a continuing act if it takes the form of some policy, rule or practice by your employer. In these circumstances the three month period runs from the end of the continuing act. Please click here for more information.
Tribunals do have discretion to allow late claims to proceed, but there must be a good reason why a claim was not made in time.
You should obtain professional advice as soon as possible if you think you have a claim. For more information on your rights, please click here.
Further Sex Discrimination points
- Sex discrimination against men is just as unlawful as sex discrimination against women. It is also unlawful for a woman to discriminate against another woman because of her sex, and for a man to discriminate against another man because of his sex.
- If an employer prioritises flexible working requests from women (for example, because of childcare requirements), this is likely to discriminate against men.
- It is acceptable for an employer to insist that a role can only be full-time if the needs of the business require it (as long as it is not specified what the sex of the jobholder should be). However, insisting on full-time hours, without fairly considering possibilities for flexible working, may be discriminatory. This is because more women than men work part-time or in flexible working arrangements.
- If the person who you believe has discriminated against you sees their behaviour as simply ‘a joke’, where they didn’t mean to offend or intimidate, it is the impact of the behaviour as perceived by you as the victim which is more important than what the person who harassed you thinks. Whether it is ‘reasonable’ for you to feel the way that you do will also taken into account.
- It is discriminatory to ask a female employee or job candidate if they are thinking of having children, because an employer is highly unlikely to ask the same question to a male employee.
- It is only a female employee who has been selected for redundancy and is taking statutory maternity leave, that must be offered any suitable vacancy before other employees. Please click here for the Maternity page.
Both harassment related to sex and sexual harassment are prohibited under the Equality Act.
Sexual harassment is defined under the Act as a person engaging in unwanted conduct relating to a relevant protected characteristic (in this case sex), which has the purpose or effect of either violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that other person.
Victimisation may occur when you are treated unfavourably due to making a complaint about discrimination. The complaint could be as informal as a conversation with a manager about the treatment you are being subjected to or making a claim at the tribunal as well as anything in between these two stages.