Case law on sex discrimination

2206063/2017
Issue: Substantial compensation for transgender discrimination

Alexandra De Souza E Souza told her retail employer from the outset that she was transgender. Her birth name, Alexander, appeared on her passport, but she told the interviewer that she was called Alexandra. The interviewer said the company had to use her official name for pay, but that she could choose the name she preferred to use on her name badge.

There were mistakes with her name in the IT system which changed her name from Alexandra to Alexander and her title from Miss to Mr. A supervisor used Alexandra for some weeks and then switched to Alexander and laughed when corrected. There was a major incident when a colleague told an electrician there were no ladies in the female toilet despite her being in there. Other incidents included colleagues saying she had a man’s voice and spraying men’s aftershave over her until she started coughing and making comments about her gender and sexuality, calling her ‘evil’ and ‘a joke’.

Her complaints were not taken seriously, and she was told to calm down and stop drawing attention. She left claiming constructive dismissal and gender reassignment discrimination.

Decision

The tribunal held she was constructively dismissed because of harassment and direct gender reassignment discrimination. She was awarded just over £47,000 compensation to cover injury to feelings (£25,000), a 25% Acas uplift and loss of pay and pension contributions (nearly £20,000).

The tribunal recommended that the employer adopt a written policy on staff who are transgender or undergoing gender reassignment and made other recommendations.

Implications

Gender reassignment is a ‘protected characteristic’ under the Equality Act 2010 and employers should handle any allegations of gender identity discrimination like any other discrimination and harassment. Organisations should have updated and comprehensive equality and harassment policies and ensure line managers are trained in how to handle all protected characteristics including trans employees’ rights. Trans discrimination and harassment should be referred to in all the equality and harassment policies.

Other steps may include:

• including a reference to confidentiality regarding transgender new starters in training materials for managers
• updating equality training to include references to transgender discrimination
• cross referring trans rights into training materials, and policies and training on disciplinary and grievance issues.

(unreported, [2016] EWCA Civ 607 23 June 2016, CA)
Issue: indirect sex discrimination

The claimant had an NHS vocational placement as part of her studies to become an NHS mental health nurse. The placement was taken away from her because owing to her childcare responsibilities she could not cope with the late and night shift patterns. She claimed indirect sex discrimination against both the university and the NHS Trust. However the claim against the university was initially not allowed for jurisdictional reasons as the employment tribunal and the Employment Appeal Tribunal (EAT) said the claim should go the county court not the employment tribunal. In the Equality Act 2010 there is a distinction between education and employment discrimination claims. Part 5 of the Act is concerned with tribunal claims for discrimination at work and Part 6 is concerned with county court claims for discrimination in education.

The Court of Appeal held that the employment tribunal did have jurisdiction to hear the claim, distinguishing between discriminatory access to work placements and discrimination occurring during the placement. If the claim is about the university providing a placement in a discriminatory way then the claim should be in the county court. If the claim is about discrimination by the employer/provider in the course of the work placement proceedings should be held in the employment tribunal.

Implications for employers

• This case is of importance to universities and employers involved in educational courses with a vocational element.

• All employers should implement equal opportunities and anti-discrimination policies to avoid such claims arising.

• If a claim does arise, employers providing vocational training may be primarily liable rather than the university where discrimination occurs in the provision of the placement.

• The starting point for employers involved in such vocational training is to identify whether the student’s complaint is about discriminatory access to a work placement or discrimination during the placement.

• If the complaint concerns access to placements then the claim should be brought in the county court under section 91 (in Part 6) of the Equality Act 2010. The primary claim would be against the university, but if the employer/provider has induced or aided the discrimination it would be secondarily liable.

• If the complaint was about discrimination in the course of the work placement the employer/provider would usually be responsible and would be primarily liable under section 55 (in Part 5) of the Equality Act 2010 in the employment tribunal.

• In some cases the discrimination could be done by the employer/provider as the university’s agent and then the claimant can choose to claim against one or against both the university and the employer/provider, but as liability would still arise under section 55 the employment tribunal would be the correct forum.

​(unreported, [2013] EWCA Civ 22 29 January 2013, CA)
Issue: Race and sex discrimination - joint liability

A claimant, a trained barrister, was not appointed to the post of a Training and Development Co-ordinator and Race Discrimination Caseworker and said that this was due to sex and race discrimination. She personally claimed against members of the interview panel as well as the council and she also brought a victimisation claim based on earlier tribunal complaints.

The claimant was awarded total compensation in the region of £421,000. The EAT held that where more than one party is found to be guilty of discrimination, all the liable respondents should be jointly and severally liable for the entire award of compensation. This means that she could recover the full amount of loss from the employer or any of the individual respondents. This was instead of apportioning liability between the respondents, as often happens. The position would be different if there is a basis for distinguishing the damage caused by each party, but this is not generally the case.

Implications for employers

• This is good news for employers in some respects as the decision departs from apportioning awards between respondents.
• Usually most compensation is apportioned to the employer, on the basis that it is richer than individual employees.
• When employees bring a discrimination case it is not uncommon for them to claim against the employer, their line manager and or other employees as personally named respondents. This is always disruptive to the workplace as the employees involved feel anxious and financially exposed.
• Respondents can agree the issue of apportionment between themselves and in many cases the employer will agree to be responsible for the entire award to protect the existing employees who have been sued, and will therefore indemnify the personally named respondent employees.
• Split awards are still possible if a party specifically requests it and where the harm is caused by different acts of discrimination and can be separated out.
• If the same representative is acting for all the respondents including the employer and the managers etc, the question of apportionment will create a conflict of interest for the lawyer representing them.

​(unreported, UKEAT/0222/13 5 December 2013, EAT)
Issue: Sex discrimination claim - illegal workers

A Sri Lankan woman worked in the UK between 2006 and February 2009 with a work permit for a number of companies. Having been made redundant from her job she needed other work quickly and applied to the first respondent (H3PL). The second respondent (Mr Raj) interviewed her on behalf of H3PL. The claimant explained that her work permit had to be transferred to permit her to work for H3PL and she could not start work until the company sponsored her. However, she began working for the company before the work permit was transferred. She was then seriously sexually assaulted by Mr Raj both during visits to the premises after her interview, but before commencing the work and then subsequently after she started to work for the company.

Before her work permit was obtained she was working under an illegal contract. She claimed unfair and wrongful dismissal, sex discrimination and harassment and the key issue was whether she could claim as an employee at all as she was employed under an illegal contract.

By the time the matter reached the Employment Appeal Tribunal (EAT) the discrimination and harassment claims were the only claims left. The EAT decided that the Equality Act 2010 protected job applicants (which this claimant was when the first assaults occurred). In addition the harassment was not inextricably linked to working under the illegal contract and the claimant should not be prevented from succeeding in her sexual harassment claim just because she was employed under an illegal contract. The case was remitted to the employment tribunal for re-consideration.

Implications for employers

• Employees who are working under illegal contracts, for example, by working without a work permit or without paying proper tax, cannot bring unfair dismissal claims when their employment is terminated.
• Regarding discrimination claims, even employees engaged under illegal contracts may be able to bring such claims in certain circumstances.
• Employers are responsible for checking employees are entitled to work in the UK. Employers can be prosecuted if they employ illegal workers and the visa should cover the type of work the employee will be doing.
• Employers can use the UK Visas and Immigration checking service to see if an employee has the right to work if the employee cannot produce documents.
• If an employee does not have permission to work in the UK, not employing or dismissing that employee has limited legal consequences normally.
• The case Hall v Woolston Hall Leisure Ltd [2000] IRLR 578, CA) contains the principles to be applied in discrimination cases if the victim is working under an illegal contract. These principles were followed in this case. Basically working illegally does not necessarily mean a claim cannot succeed, but a tribunal needs to consider if a claim is so clearly connected to the claimants’ illegal conduct that if the tribunal awards compensation it is condoning the illegality.
• There is a distinction between sexual harassment during employment and discrimination relating to the actual dismissal. In Hounga v Allen [2012] IRLR 685, CA the Court of Appeal held that a claimant employed under an illegal contract could not bring a discrimination claim associated with the dismissal.

(unreported, UKEAT/0434/11 27 January 2012, EAT)
Issue: Alleged dishonesty

An employee and her manager had an acrimonious dispute about how her commission payments had been agreed. Both of them thought that the other was lying. At a grievance meeting the employee alleged that her pay arrangements were changed because she was pregnant. The manager denied this, but brought up her pregnancy, based on timeline entries made on Facebook and asked why she had lied about the dates of her miscarriage and her pregnancy. The employee denied lying and subsequently claimed direct sex discrimination and harassment. The key issue was whether the manager’s words were related to sex and therefore discriminatory, or simply concerned the employee having allegedly lied.

The Employment Appeal Tribunal (EAT) held the claims should be dismissed as the manager’s comments had to be placed in context. The context was that the dispute was about lying and the EAT could decide the comments were not because of the employee’s sex, or because she was pregnant, or had had a miscarriage. Although the comments could not have been made to a man (because a man cannot be pregnant), this inherent discrimination was not enough for a claim to succeed, looking at the context of the words used. The words used were not because of pregnancy, but to highlight the employee's alleged dishonesty.

Implications for employers

• The decision is useful for employers because it confirms context can be taken into account when deciding if words or conduct constitutes discrimination.
• Employers should avoid making any comments which are discriminatory, potentially discriminatory, or relate to a protected characteristic.
• However, if an employer makes a mistake and says something regrettable, then the it should analyse the true context in which the words were spoken.
• The context may offer a chance of defeating a claim despite the words used.
• This case mirrors the judgment in Grant v HM Land Registry which confirmed that a comment about a protected characteristic under the Equality Act 2010 is not necessarily discriminatory.
• An employee’s private life, such as pregnancy, miscarriage or sexuality may be discussed, but even if the victim is upset, the mention of this will not necessarily be an act of discrimination. However ill-intent may alter the context in which the actions or words took place.

[2012] ET/1401305/11
Issue: Sex discrimination-menopause

Facts

There is very little case law around discrimination linked to menopausal symptoms, and this case was one of the first ones to be brought.

The BT employee was disciplined for poor performance. There had been capability or performance management procedures a number of times culminating in a final written warning.  

The employee provided a GP’s letter which stated that she was going through the menopause which could “affect her level of concentration at times” and also that she was suffering stress due to being a carer for two members of her family.

BT’s performance management process stated that there must be an investigation into whether the underperformance was due to health factors. Despite this, neither HR or the line manager investigated her symptoms at all. The manager in charge decided not to investigate the possible impact of the employee’s menopause. He preferred relying upon his knowledge of his wife’s menopausal symptoms! The employee was dismissed and claimed unfair dismissal and direct sex discrimination. 

Decision

The employer lost. The Tribunal upheld both the employee’s claims. The manager would never have adopted “this bizarre and irrational approach” in a case involving a man with health difficulties. Women experience menopause in different ways and with varying severity of symptoms. 

It was less favourable treatment to not send the employee for an occupational health assessment before taking the decision to dismiss. This was direct sex discrimination as a man with comparable symptoms affecting his concentration would not have been treated in the same way. The employer had not even followed its own policy on under-performance and health.

Implications for employers

The case was at Employment Tribunal level only and does not bind other tribunals, but it is a useful reminder to employers of how the law can be applied if menopausal symptoms are not taken seriously. Employers should always provide training to line managers, so they understand menopausal symptoms, how they can affect the employee and possible steps to help support them. Employers should also:

• Encourage employees to speak up if they do require support.
• Consider possible adjustments or flexible working arrangements, for example later starts to deal with the sleep deficiencies, part time home working or temperature controls in the office.
• Ensure that the employee is not treated detrimentally because of menopause related symptoms or absences.
• Consider flexibility to attend health screenings and medical appointments
• Consider medical information in capability situations where ill-health has been raised by the employee. 
• Seek medical advice, with consent, from the employee’s GP or an occupational health practitioner.

Please also see the disability discrimination case of Davies v Scottish Courts and Tribunals Service for an example of another claim brought by employees relating to the menopause. 

(unreported, UKEAT/0302/11 13 March 2012, EAT)
Issue: marital status

A female employee was married to the Chief Executive Officer (CEO) of the employer. Her employment was terminated on the basis that her employment contravened an instruction to the CEO that the employer should not to engage any family members of the board.

The employer’s reasoning was that many companies had policies against nepotism, favouritism, undue influence and conflicts of interest. Having the wife of the CEO in a senior executive role created an unacceptable conflict of interest. The CEO’s daughter and the CEO himself were also dismissed.

The CEO’s wife subsequently brought a claim that she had been discriminated against directly because of her marital status. The Employment Appeal Tribunal (EAT) assessed what the position would have been if the CEO and his wife were common law spouses rather than being  married. They found that the CEO’s wife would still have been dismissed and was therefore not dismissed because of the marriage itself. The EAT therefore held that she had not been discriminated against.

Implications for employers

• Employers must take care not to discriminate against employees on the grounds of whether they are married or not.
• In order for a direct marriage discrimination claim to succeed, the fact that the employee was married must form part of the reason for the employee’s treatment.
• This case departs from earlier decisions relating to discrimination on grounds of marital status.
• Earlier decisions suggested that an employer will have discriminated against an employee on the grounds of marital status if it subjects them to a detriment for reasons relating to their close relationship with another person.
• This case suggests that an employer who take steps based only on close relationships between two people (who might also happen to be married) will not necessarily be discriminating. As in that situation the actions are not based on marriage itself.
• Employers may consider having an anti-favouritism policy, but such a policy must be operated in a non-discriminatory manner.
• Married employees (and those in civil partnerships) should not be treated more or less favourably than those who are in an unmarried relationship.

Sex and race discrimination - burden of proof

The Head of the Orthodontics Department (who was born in Sri Lanka) brought claims for sex and race discrimination alleging that she had been bullied and harassed by two managers.

She had previously complained to the Chief Executive comparing her treatment with that of two white male consultants, but after an investigation it was recommended that no action be taken. The claimant’s circumstances were not exactly the same as either comparator, but the employment tribunal found there was sufficient similarity and the difference in treatment justified the tribunal's inference of discrimination. It was then for the employer to prove it had not discriminated which it failed to do.

One of the key matters in the case concerned the burden of proof. The matter eventually reached the Supreme Court who declined to give further guidance, saying the approach set out in previous cases was clear. The burden of proof shifts to the employer where the claimant shows a prima facie case of discrimination.

Implications for employers

• Most of the implications in this case affect the way barristers argue a case on the employer’s behalf.
• In all discrimination cases the employee simply has to show an initial case that they suffered discrimination. It is then up to the employer to prove that they did not discriminate.
• Lawyers representing parties in discrimination cases should usually ask the tribunal to make specific findings of fact on the reason for the treatment in question.
• Once an employer satisfies an employment tribunal that it has acted for a particular reason that usually discharges the burden of showing that the discriminatory reason played no part in why the employer acted as it did.
• In discrimination cases an employment tribunal should hear all the evidence, including that of the employer before deciding whether or not the employer should bear the burden of proof.
• The employer can dispute a claimant's version of events and an employment tribunal must weigh up all the evidence before deciding whether or not those events did in fact take place.

(unreported, UKEAT/0531/10 2 December 2011, EAT)
Issue: Marital status

A married couple worked for the same organisation. The wife was in dispute over her sick pay entitlement and her husband also had a strained relationship with the overall manager. The wife brought grievances about proposed changes to her contract of employment and her sick pay entitlement and later resigned. She claimed constructive dismissal and direct marital discrimination under what is now the Equality Act 2010. One of the key issues was did any discrimination occur because she was married, or because of the particular person she was married to. During her grievance appeal the employer had produced evidence that related to alleged misconduct on the part of her husband.

The Employment Appeal Tribunal decided that treating an employee less favourably because of the identity of their spouse could constitute marital discrimination. There had been conflicting earlier cases, but it followed a case called Chief Constable of the Bedfordshire Constabulary v Graham and held that less favourable treatment of an employee on account of a reason specific to that marriage could found the basis of a direct marital discrimination claim.

Implications for employers

• The Sex Discrimination Act 1975 (and the Equality Act 2010 that has replaced it) make it unlawful to discriminate, either directly or indirectly, against married persons and civil partners on the ground that they are married or a civil partner.
• There has been very little case law in this area to guide employers. However employers should ensure that they do not treat an employee differently on account of the identity of their spouse.
• This case has arguably widened the scope of the marital status discrimination provisions.
• Usually if employers operate a policy of restricting married or other couples working together, this is an unlawful act of marital (or sex) discrimination unless it can be justified.
• Employers who employ couples, husbands and wives or civil partners to work for them should take particular care.
• Employers with two married employees will face difficulties when a dispute arises in relation to one of the couple.
• Some larger employers may wish to consider a blanket policy relating to retaining husbands and wives and civil partners in different teams and/or assigning them to different tasks. However this must be approached carefully so that the terms of the policy do not constitute marital discrimination in themselves.
• Employers will discriminate against a married person or a civil partner if they are treated less favourably than single employees. For example moving one employee to a different department away from their spouse may be a demotion and marital discrimination.
• The current case was decided under the Sex Discrimination Act 1975 (SDA) rather than the Equality Act 2010. However the marriage discrimination provisions of the Equality Act have largely reflected the SDA, so the same interpretation can apply under the current legislation.

​(unreported, [2011] EWCA Civ 1281 8 November 2011, CA)
Issue: Part-time female workers - pensions

A company had numerous part-time female workers who alleged that they had been discriminated against because they had been prevented from joining its pension scheme. When the rules were eventually changed some of the claimants still had not joined the scheme within three months of being allowed to do so.

Should the women who probably would not have joined the pension scheme anyway get compensation for the fact that they were, for a period of time, excluded from the scheme because they were part time workers?

The Court of Appeal held that excluding the part-time female workers from the pension scheme was unlawful sex discrimination. However the part-time workers who would not have joined the scheme anyway and had therefore suffered no loss, were not entitled to compensation.

Implications for employers

• Employers should not discriminate by preventing part–timers, or women or anyone from joining an occupational pension schemes on the grounds of gender, age, sexual orientation, marital status etc.

• However female part-time workers who would not join an employer’s pension scheme anyway, cannot be in a better position than male full-time workers who also chose not to join the scheme.

• Employers will not be liable to employees who can show no loss from exclusion from a pension scheme.

​[2011] IRLR 448, EAT
Issue: Sex discrimination - maternity leave/cover

A male solicitor was one of two associates working in an office as part of a real estate Team. The other associate was a woman on maternity leave. It was decided that one of the two associates in the team would have to be made redundant. Both employees were scored against various performance criteria, including the length of time between the completion of a piece of work and the receipt of payment from the clients.

When the criteria were applied, the female associate was still on maternity leave and therefore had no current client files which could be measured so she was given the maximum score for this criterion. As a result of the scores the male employee was selected for redundancy. However if the female employee had not been given the artificial maximum score, there would either have been a tie or she would have scored less and would have been the one selected for redundancy.

The male solicitor raised a grievance followed by a sex discrimination claim, suggesting alternative approaches, which included measuring the female employee using the actual figures available before she went on maternity leave. However the employer felt that that their approach was legally necessary in order to ensure that the female employee did not lose out by her maternity absence and to avoid the risk of a sex discrimination claim from her.

The Employment Appeal Tribunal held that in this case treating a woman on maternity leave more favourably in the redundancy scoring exercise constituted sex discrimination against the man in her selection pool.

Implications for employers

• Employers face considerable difficulties in situations which require using redundancy scoring to choose between a man and a woman on maternity leave. Employers potentially will face the risk of a claim of sex discrimination from either employee.
• The starting point is that employers are under a high obligation to protect employees who are pregnant or on maternity leave under the Equality Act 2010.
• If an employer dismisses an employee on maternity leave without offering a suitable and alternative vacancy then the dismissal is automatically unfair.
• An employee who is made redundant on maternity leave is entitled to be offered a suitable available vacancy with her employer (or an associated employer) with terms and conditions which are not substantially less favourable.
• Female employees effectively do have priority over other employees who are at risk of redundancy for other available vacancies, even if the woman is on maternity leave.
• However the obligation to offer suitable alternatives to women on maternity leave, is different from giving those women excessive protection form selection in the first place.
• If the criteria used by employers leans too far in favour of the woman on maternity leave then sex discrimination claims can arise from a man selected instead of the woman.
• If a man brings a sex discrimination in such circumstances the Equality Act 2010 provides that no account should be taken of ‘special treatment’ afforded to women in relation to pregnancy or childbirth.
• However the ‘special treatment’ accorded to a woman must be a proportionate means of achieving the legitimate aim of compensating the woman for the disadvantages occasioned by her pregnancy or her maternity leave.
• The ‘special treatment’ afforded to women must therefore go no further than what is reasonable and proportionate.
• Favourable treatment in the application of redundancy criteria will be disproportionate if there are less discriminatory alternative measures that could be adopted, such as (in this case) measuring performance at a time when both candidates were still at work.
• Employers should always lay a paper trail to show why they applied the criteria they did.

​(unreported, UKEAT/0108/10/ZT 6 August 2010, EAT)
Issue: Sex discrimination: pregnancy related discrimination

A business development manager at a firm of solicitors had allegedly had two relationships within the office.

After the party she was on holiday and then ill and by her return to work in January she was pregnant. She told the managing partner who told the HR manager and within hours gossip and rumours circulated about the paternity of the baby. The employee requested a transfer to a different office which was refused. Eventually,after a period of sick leave she raised a grievance. Whilst this was pending she was told to return to work immediately which she was not prepared to do. The employer did not pay her for the whole of February and in March she resigned, subsequently claiming sex and pregnancy discrimination, harassment and unfair constructive dismissal.

Eventually the matter reached the Employment Appeal Tribunal (EAT):

• The EAT confirmed the employee had been constructively unfairly dismissed (as the tribunal had also found). The employer had broken the implied term of trust and confidence by refusing to consider her request for a transfer, by deducting her wages and by not hearing the grievance properly.
• However, the EAT did not agree with the tribunal that employee’s compensation award should be reduced by 90%. Although some of her conduct had been inappropriate, especially in her attempts to attempt to force a compromise of the claim, only any behaviour before the dismissal should be taken into account, not any behaviour after that.
• Finally the EAT decided that there had been sex and pregnancy discrimination and harassment. The failure to allow the employee to transfer to a different office was discrimination on these grounds and the gossip was intimidating, hostile, degrading or humiliating, and was not prevented by the employer and did constitute harassment.

Implications for employers

• Employers must behave sensibly and rationally when personal relationships arise in the workplace.
• If a manager is involved in a situation, then another senior employee should deal with matters.
• Employers should take steps to prevent or contain harmful office gossip.
• Requests for transfers in such situations must be considered seriously or there may be a breach of the implied term of trust and confidence.
• Grievances should be taken seriously and be dealt with promptly and swiftly in accordance with the employers procedures.
• Employers are potentially liable for gossip and discriminatory comments concerning or related to a protected characteristic, such as pregnancy. Pregnant employees are still protected even if the conduct is only related to the pregnancy.