Sex discrimination and employment
Explore the UK legal position and main issues employers face when dealing with sex discrimination in the workplace.
Selected cases on sex discrimination in the workplace
Here we list a selection of key cases, reported since 2010, on sex discrimination in the workplace, providing a summary of the decision and implications for employers.
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(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.
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.
(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.
(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.
(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.
[2012] ET/1401305/11
Issue: Sex discrimination-menopause
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.
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.
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:
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.
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.
(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.
(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.
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.
(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):
Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.
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