In Great Britain, discrimination on the grounds of sex is now contained within the Equality Act 2010.
The Equality and Human Rights Commission (EHRC) has published guidance on sex discrimination and the Equality Act including a Code of practice on employment. Whilst not legally binding documents, the codes give important guidance on good practice and failure to follow them may be considered by tribunals or courts. CIPD members can find out more in our Sex discrimination law Q&As.
Types of discrimination
Within the Equality Act 2010 there are the following different types of discrimination:
Direct discrimination
This is treating someone less favourably than another person because of a protected characteristic that they have. For example, it’s promoting a man rather than a woman because of their sex.
Indirect discrimination
Indirect discrimination occurs when:
- a provision, criterion or practice is applied to all, and:
- it puts a group with a protected characteristic at a disadvantage when compared with another group
- an individual is put at a disadvantage
- the employer cannot show it to be a proportionate means of achieving a legitimate aim.
For example, if an employer requires all employees in a role to work full time. A female employee with children will suffer disproportionately from this requirement because women are statistically more likely to have child-caring responsibilities. This requirement would be indirect sex discrimination if the employer cannot show that full-time working is essential.
Associative discrimination
This is treating someone less favourably because they associate with an individual who has a protected characteristic. Associative discrimination usually arises in connection with disability or sexual orientation discrimination. However, associative discrimination could arise in connection with sex discrimination, for example, treating a man less favourably because he supported a female colleague who was being discriminated against.
Perceptive discrimination
This is treating someone less favourably because it’s perceived that they have a protected characteristic, whether they do or not. Perceptive discrimination rarely arises in sex discrimination claims.
Victimisation
Victimisation occurs when someone is treated less favourably because they have made or supported a complaint or raised a grievance under the Equality Act 2010. It also applies if it’s thought that they have made a complaint. Post-employment victimisation can occur - for example, refusing to give a reference to someone who complained under the Equality Act 2010 - although the Act has some grey areas concerning post-employment victimisation.
Harassment
Harassment is ‘unwanted conduct related to a protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them'. It includes harassment because of a person’s sex and sexual harassment.
These two types of harassment related to sex both involve unwanted conduct that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.
- Sexual harassment involves unwanted conduct of a sexual nature. This must have an actual sexual content or connotation, for example making sexual remarks or jokes or making promotion decisions on the basis of sexual advances being accepted or rejected.
- Sex-based harassment involves unwanted conduct related to an individual’s sex or the sex of another person. This is not sexual in nature but is behaviour which is linked to sex; for example, in a female-dominated workplace, constantly telling derogatory jokes about male stupidity which a particular male employee finds offensive.
The law protects individuals from harassment while applying for a job, in employment and in some circumstances after the working relationship has ended (for example, in connection with the provision of a verbal or written reference).
Find out more in our factsheet on workplace bullying and harassment.
Occupational Requirement
Where there is an Occupational Requirement to employ a person with a particular protected characteristic, very limited exceptions may apply. The employer must be able to show that there is a genuine need, taking account of the type of work. For example, certain hospital or prison work providing special care for one sex is subject to a ‘reasonableness’ test.
Positive action
Employers can take positive action, for example to address under-representation or other forms of disadvantage within the workforce. The provisions are complex and must be handled very carefully. Different provisions apply concerning positive action relating to recruitment and promotion. See guidance from the EHRC.
Related issues
Gender reassignment and sexual orientation discrimination are protected separately under the Equality Act and covered in our factsheet on sexual orientation and gender reassignment. CIPD members can see more detail in our Sexual orientation discrimination law Q&As.
Equal pay between men and women is also included in the Equality Act 2010. CIPD members can see more detail in our Equal pay Q&As. From 2017, UK organisations with more than 250 employees are required to publish and report specific figures about their gender pay gap. Find out more in our Pay fairness and pay reporting factsheet.
Any unfavourable treatment of a woman because of her pregnancy, childbirth or maternity is likely to constitute pregnancy and maternity-related discrimination. There may also be an unfair dismissal claim. CIPD members can find out more in our Maternity law Q&As.
Proposals are currently progressing through Parliament in 2023 to improve protection for women from redundancy until 18 months after the birth which should reduce sex discrimination claims. In addition the right to request flexible working will be made a day-one right in 2023 (as called for by the CIPD’s Flex From 1st campaign). Employees will be able to make two flexible working requests a year rather than one and employers will have to respond within two months rather than three. Employees will no longer have to set out how the effects of their flexible working request might be dealt with by the employer.
