Selected cases on sex discrimination in the workplace
Sex discrimination occurs when someone is unfairly disadvantaged for reasons relating to their sex. Although illegal in the UK for many years, the law is now incorporated into the Equality Act 2010. Sex discrimination continues to be an issue, for example, sexual harassment and pregnancy and maternity discrimination remain serious problems, and low numbers of women in senior roles is a key challenge for many organisations.
This factsheet offers an overview of the different types of discrimination with examples of how they apply to sex discrimination. It highlights the need for employers to take action and suggests good employment practices to ensure everyone has fair access and opportunity to progress in work, regardless of their sex.
A person’s sex should not affect whether they get a job, benefit from training or get promoted. Everyone deserves the opportunity to develop their skills and talents to their full potential, work in a safe and inclusive environment, be fairly rewarded for their work, and have a voice in their organisation.
Although sex discrimination has been illegal for more than 30 years, we know it’s still an issue. For example, sexual harassment at work, pregnancy and maternity discrimination are serious problems employers must tackle. In addition, although there has been progress surrounding female representation at the top of organisations, there is still a long way to go until we can claim equality of opportunity on the basis of sex.
HR should set behavioural expectations through policies, including communicating a zero-tolerance approach to sex discrimination and investigate any complaints fairly and seriously. However, policies alone won’t bring about change; policies need to be brought alive by the behaviour of everyone in the organisation and HR must ensure workplace cultures are an inclusive and safe space for everyone. Being a genuinely inclusive employer will benefit an organisation’s reputation and brand, their ability to recruit great people and attractiveness to customers.
At the CIPD we are proud of our work to demonstrate diversity and inclusion. This includes refreshing our policies to ensure all our language is inclusive. We have a broad Diversity and Inclusion Group, which includes representatives from HR and a subgroup focussing on gender issues. In November 2017, we were one of the first 250 companies to publish their gender pay gap in line with new statutory requirements, together with three priority areas for action.
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What is sex discrimination?
Sex discrimination occurs when someone is unfairly disadvantaged for reasons related to their sex. Although most sex discrimination occurs against women, it is just as unlawful to discriminate against a man because of his sex.
Such discrimination can:
- adversely affect employment opportunities
- result in failure to consider skills-based abilities, potential and experience
- result in significant legal costs, compensation and settlements paid to avoid defending expensive discrimination claims.
Gender issues remain a workplace challenge. In Where do we really stand on gender equality in the workplace? our Employment Relations Adviser argues that more action is needed by government to tackle these issues and that a wider shift in culture is required in organisations to promote genuine gender equality.
Sexual harassment at work still persists and the media has brought the issue firmly into the public eye along with campaigns to raise awareness and prompt action to tackle it. A 2016 TUC survey shows that nearly two in three young women have experienced sexual harassment at work, and a 2017 BBC/ComRes survey reports that 40% of women have experienced some form of sexual harassment in the workplace. Read our guidance on how employers should respond.
The legal position
In Great Britain, all legislation relating to discrimination is contained within the Equality Act 2010.
The Equality and Human Rights Commission has published a range of guidance on all aspects of 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 taken into account by tribunals or courts. CIPD members can find out more in our Sex discrimination law Q&As.
In the referendum on 23 June 2016 the UK voted to leave the EU. Our Brexit hub has more on what the implications might be for employment law.
Types of discrimination
Within the Equality Act 2010 there are a number of different types of discrimination which apply to the protected characteristics, including a person's sex.
This applies to all protected characteristics. It's 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 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 particular role to work full time. A female employee with children will suffer a disproportionate impact 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.
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.
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 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. A comparator isn’t required for a claim of victimisation. Post-employment victimisation can occur - for example, refusing to give a reference to someone who had made a complaint under the Equality Act 2010 - although the Act has some grey areas concerning post-employment victimisation.
Harassment is ‘unwanted conduct related to a relevant 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 that individual. Harassment covers making someone feel offended or degraded, for example by saying 'there is no point promoting women as they always end up going away to have children'. Treating an employee in a sexual way is also covered, including sexual comments, touching or assault.
There's no longer any specific legislation making employers liable for harassment that comes from a third party (for example, a customer). However, an employer can still be liable as a result of numerous other legal duties, for example breach of contract, direct discrimination and under the Protection from Harassment Act 1997. This, and good practice, mean that employers should continue to take steps to protect employees from all forms of harassment.
Find out more in our factsheet on workplace bullying and harassment.
Where there is an Occupational Requirement to employ a person with a particular protected characteristic, certain very limited exceptions from the law are permitted covering selection, promotion and training. 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.
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 carefully. Different provisions apply concerning positive action relating to recruitment and promotion. See the guidance from Citizen’s Advice.
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. Find out more in our factsheet on equal pay. CIPD members can see more detail in our Equal pay law Q&As. From 2017, UK organisations with more than 250 employees must publish and report specific figures about their gender pay gap. Find out more in our Gender pay gap reporting factsheet.
Any unfavourable treatment of a woman because of her pregnancy, childbirth or maternity leave is unlawful and is likely to constitute pregnancy and maternity-related discrimination and may also give rise to a constructive unfair dismissal claim. CIPD members can find out more in our Maternity law Q&As.
Good employment practices
As part of coherent diversity, inclusion and employee engagement strategies, employers should undertake thorough reviews or equality analyses of policies and working practices to remove unfair discrimination and bias. HR have a key role in creating open workplace cultures where to be different is not a problem but an asset. There's still a significant way to go until we can claim that sex discrimination and harassment are not issues at work.
Although there’s no legal requirement to have a written diversity policy, it’s a good idea to produce one to demonstrate the organisation takes its legal and moral obligations towards being a diverse employer seriously. It can also encourage employees to treat others equally.
Actions should focus on:
Ensuring a belief in having a diverse and inclusive workplace is part of the organisation’s desired identity, not a ‘nice to have’. This will involve communicating ethical and business case arguments for a continuous focus on inclusion. This includes ensuring that sex does not dictate the opportunities employees are afforded at work, and creating an inclusive workplace is everyone’s responsibility.
Promoting a culture of respect and dignity for all employees through effective implementation of well-designed policies and procedures, which are regularly reviewed to ensure they are bias free and fair, and they support both individual and business needs.
Assigning senior level responsibilities for driving diversity issues, including a senior level sponsor for gender inclusion, and allocating appropriate resources to drive change.
Communication and training
Communicate a firm commitment to workplace inclusion and ensure equality and diversity policies and statements are easily accessible to all.
Make it clear the organisation has a zero-tolerance approach to bullying, harassment and discrimination. Provide examples of the standards of behaviour required, what sex discrimination and harassment looks like, and the consequences of breaking the behaviour codes.
Ensure line mangers understand their role in addressing all complaints and make sure all employees understand their personal responsibility to treat colleagues with respect. Use a variety of communication methods and channels to do this.
Ensure staff are aware of how to report instances of bullying, harassment or discrimination and feel able to do so.
Be seen to act proactively and fairly in response to all complaints of sex discrimination, sexual harassment and victimisation.
Work closely with managers to ensure they implement people management practices fairly, ensuring they provide evidence and reasoning for promotion and reward decisions.
Work with employee networks, for example a gender network, to understand the specific issues in the organisation, how staff can be better supported, and work collaboratively with networks in communicating the importance of diversity and inclusion to the rest of the organisation.
Reviewing employment practices
Ensure recruitment and selection processes are fair and not open to discrimination on the basis of someone’s sex. For example, take care in drafting advertisements to avoid discrimination and stereotyping through language and images and aim to attract candidates from diverse sources. Indicate if any genuine Occupational Requirements apply.
Consider including a statement on flexible working in job adverts, signalling to applicants that you’re open to discussing how the job could be done flexibly.
Incorporate a diversity statement in every job advert. Have links to your organisation’s diversity and inclusion webpage where people can find out more about the organisation’s commitment to diversity and inclusion and information about employee resource groups, such as a gender network.
Operate transparent and consistent appraisal and performance management processes and check that career paths and promotion and training opportunities are inclusive for all employees, regardless of their sex.
Review policies and procedures, and terms and conditions of employment to ensure fairness and legal compliance, including flexible working practices and dress code. Involve your gender network in reviewing policies if you have one and keep the wording of policies and procedures gender neutral.
Actively examine the reasons for gender imbalance at different levels of the organisation and across occupations, identifying the action needed to remove barriers to entry and progression for men and women. Use data from gender pay gap reporting to inform your enquiry. Our survey report Gender diversity in the boardroom: reach for the top explores HR practitioners’ perspectives and offers practical strategies for improving women’s representation. Listen to our podcast on boardroom diversity.
Useful contacts and further reading
Books and reports
ACAS. (2017) Sex discrimination: key points for the workplace. London: Acas.
GOVERNMENT EQUALITIES OFFICE. (2018) Dress codes and sex discrimination: what you need to know. London: GEO.
RUBENSTEIN, M. (2018) Discrimination: a guide to the relevant case law. 31st ed. London: Michael Rubenstein Publishing.
GUILLEN, L., MAYO, M. and KARELAIA, N. (2018) Appearing self-confident and getting credit for it: why it may be easier for men than women to gain influence at work. Human Resource Management. Vol. 57, No 4, 2018, pp839-853. Reviewed in In a Nutshell, issue 81.
KIRTON, H. (2017) Gender equality at work has barely improved in 10 years, report finds. PM Daily. 13 October.
This is still a man’s world. (2015) Labour Research. Vol 104, No 3, March. pp10-12.
CIPD members can use our online journals to find articles from over 300 journal titles relevant to HR.
Members and People Management subscribers can see articles on the People Management website.
This factsheet was last updated by Lisa Ayling, solicitor and employment law specialist, and by Jill Miller.
Dr Jill Miller: Diversity and Inclusion Adviser (Maternity leave)
Jill joined the CIPD in 2008. Her role is a combination of rigorous research and active engagement with policy makers, academics and practitioners to inform projects and shape thinking.
She frequently presents on key people management issues, leads discussions and workshops, and is invited to write for trade press as well as offer comment to national journalists, on radio and TV. She specialises in diversity and inclusion, employee well-being, people management in SMEs and future HR trends.
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