Clarifying the law on sexual discrimination for employers
Discrimination occurs where there is no equal treatment for men and women regarding access to employment, vocational training and promotion, and working conditions.
Sex is one of the nine protected characteristics covered by the Equality Act 2010. The others being age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief and sexual orientation.
All of the following definitions of direct discrimination, indirect discrimination, victimisation and harassment apply to all of the protected characteristics except pregnancy and maternity which have their own rules.
Under the Equality Act 2010, the types of discrimination come under these headings
Direct sex discrimination is where an employer discriminates directly by treating a job applicant or employee less favourably than others because of their sex. An employee must show that they have been treated less favourably than a real or hypothetical comparator. The only exception to this is pregnancy discrimination.
Indirect sex discrimination is where an employer discriminates indirectly by applying a provision, criterion or practise to all job applicants or employees which puts one sex at a disadvantage, including the individual concerned.
However, it will not be indirect discrimination if an employer can objectively justify this by demonstrating it to be a proportional means of achieving a legitimate aim. For more information, please view our page on Sex Discrimination in the Workplace.
Victimisation is where an employer treats an employee detrimentally because they have done a ‘protected act’, i.e. complained about sex discrimination at work. This also applies where the employee provides or intends to provide evidence in relation to a complaint.
It does not matter if the employee was wrong in believing there was discrimination, as long as the complaint was made in good faith.
Harassment is unwanted conduct from an employer relating to sex or gender has the purpose or effect of violating an employee’s dignity or producing a hostile, intimidating, humiliating or degrading environment.
Just because an employee has put up with harassment for a long time does not mean it is not unwanted. An employee can also be harassed by conduct directed at another employee.
It is also unlawful harassment to subject an employee to unwanted conduct of a sexual nature, including treating them less favourably because they rejected or submitted to the unwanted sexual conduct. To find out more, please visit our page on Sexual Harassment Employment Law.
If the employer or management treat the employee less favourably because they complains about the harassment, this can amount to further harassment, direct discrimination or victimisation if the actions taken meet the definitions outlined above.
An employer will be responsible for any direct discrimination in their response to an employee’s complaint about harassment by third parties. An employer’s inaction may also amount to harassment in itself.
If an employer fails to investigate a complaint of harassment this may well be a fundamental breach of contract, so that the worker can resign and claim constructive dismissal
Under the Equality Act (2010), it is unlawful to discriminate against someone on the basis of their actual or perceived sexual orientation.
To find out more about sexual orientation discrimination in the workplace, please see our page on LGBT discrimination.
We help employers prevent sex discrimination in the workplace in a variety of ways, including writing or advising on the implementation of an equality and diversity policy and training managers in discrimination law. We offer advice on redundancy and Settlement Agreements in relation to sex discrimination claims.
We can also advise on or manage an investigation, grievance or disciplinary procedure involving allegations of sex discrimination in the workplace (sometimes called sexual discrimination in the workplace) or represent you at an Employment Tribunal.
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