Making Sense of Employment Law – Sex Discrimination in the Workplace
Who is protected by sex discrimination law?
The Sex Discrimination Act 1975 prohibited sex discrimination in the workplace. Sex discrimination law protects employees, workers, and anyone under a contract to personally carry out work. It covers all areas of employment, including (but not limited to):
- Recruitment
- Promotion
- Training
- Redundancy selection
In July 2003 sex discrimination law (the Sex Discrimination Act) was amended to cover discrimination in cases where the employment relationship had come to an end provided that the alleged discrimination arises out of or is closely connected to the employment relationship.
For example, an employee could bring a victimisation claim against a former employer where she left their employment having raised a grievance about sex discrimination, found a new job, but is then terminated due to the comments of the former employer.
Since October 2010 the Equality Act regulates the law relating to sex discrimination.
Types of sex discrimination in the workplace
Sex discrimination is where a person is treated less favourably because of their gender. Sex discrimination laws prohibit an individual receiving less favourable treatment due to their sex or gender reassignment.
Employment discrimination against married people is also unlawful under sex employment discrimination law. However, it is not unlawful to discriminate against someone because they are not married.
Pregnant women and new mothers are also protected by specific workplace rights see maternity discrimination and pregnancy discrimination.
Direct sex discrimination at work
Direct sex discrimination is where an individual is treated less favourably than someone of the opposite sex is treated (or would be treated) in comparable circumstances on the grounds of their gender. Direct discrimination includes treating a woman adversely because she is pregnant (see pregnancy discrimination).
Discrimination on grounds of gender reassignment
The Sex Discrimination (Gender Reassignment) Regulations 1999 prohibited discrimination on the grounds that a person intends to undergo, is undergoing or has undergone a gender reassignment. Gender discrimination law also covers an individual’s absence for purposes of undergoing gender reassignment. As a result, it is discriminatory to treat an individual less favourably than they would be treated if their absence was due to sickness, injury, or another cause. Since October 2010 this type of discrimination is unlawful under the Equality Act.
Indirect sex discrimination
Indirect sex discrimination is where a provision, criterion or practice is applied to both sexes, which puts or would put one sex at a particular disadvantage and puts the potential claimant at that disadvantage and which cannot be shown to be a proportionate means of achieving a legitimate aim.
Victimisation
An employer is guilty of victimisation where an employee is treated less favourably because they have done or threaten to do a protected act. For example, bring proceedings, give evidence, take action or make an allegation under the Sex Discrimination Act or Equal Pay Act. Even where discrimination is unintentional, it is still victimisation.
Harassment
Harassment is where, on the grounds of sex, unwanted conduct has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Whether an action amounts to harassment depends on the circumstances, including the alleged victim’s perception. There is no need for a comparator in harassment cases. A male comparator (actual or hypothetical) is used in other sex discrimination cases to test whether a person of another sex would have been treated more favourably in similar circumstances. Unwanted conduct of a sexual nature which has the same purpose or effect is also specifically prohibited. Individuals treated less favourably because they rejected or submitted to such unwanted conduct are also protected under this legislation.
Want to talk to us?
If you would like to discuss sex and employment discrimination law or for any other information relating to discrimination in the workplace please email Fiona Martin or call your local martin searle solicitors’ office on 01273 609911 (Brighton) or 0845 189 0152 (Croydon).
