Selected cases on sex discrimination in the workplace
Sex discrimination occurs when someone is unfairly disadvantaged for reasons relating to their gender. Although illegal in the UK for many years, with the law now being incorporated into the Equality Act 2010, sex discrimination remains an issue. The number of women in senior roles is a key challenge for organisations, and discrimination against women on pregnancy or maternity grounds appears to be increasing. Protection against discrimination on the grounds of gender reassignment is also part of the Equality Act.
This factsheet offers an overview of the different types of discrimination with examples of how these apply to sex discrimination. It looks at the specific issues faced by women and those who are transgender. The factsheets suggests good employment practices, covering recruitment and selection, performance management and development, dress codes, the importance of communication and training, and advises employers to review all policies and procedures to ensure they are fair.
Sex discrimination has been illegal for more than 30 years. The Equality Act 2010 has streamlined these provisions as well as those relating to transgender discrimination.
Employers must make sure that prejudice and stereotyping on the basis of gender and gender reassignment don’t result in unfair decisions about jobs and training. Failure to do so could lead not only to legal costs but also lost productivity and damaged employer brand and reputation, as well as lost opportunities to gain business advantage. Increasingly, evidence points to the importance of managing diversity to gain a competitive edge in challenging markets.
Managing diversity successfully is key to good people management. Hard facts show that people can make the difference between good and poor business performance. But everyone is different, and unless employers take diversity seriously they will fail to recruit, retain and engage the commitment of the talent needed to sustain and improve business performance. Research into recruitment and talent management shows how diversity is being addressed to increase effectiveness. Employers who take no action to promote diversity will quickly become less attractive to the diverse labour market for talent and skills, and they will lose out to competitors.
What is sex or gender reassignment discrimination?
These forms of discrimination arise when someone is unfairly disadvantaged for reasons related to their gender or gender reassignment.
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.
The legal position
For convenience, we've grouped together discrimination relating to gender and gender reassignment in this factsheet.
In the UK, all legislation relating to discrimination is contained within the Equality Act 2010. The Equality and Human Rights Commission publish a range of guidance on all aspects of the Equality Act (see Useful contacts).
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. These apply to the protected characteristics, which include sex, and gender reassignment.
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 gender.
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 a criterion is put in place that part-time working isn’t allowed in a particular role this makes it more difficult for women to have that role compared with men, because they are more likely to have child-caring responsibilities. If a woman applies to be promoted into that role but she isn’t successful, it would be indirect discrimination if the employer cannot show that full-time working is an essential requirement.
This is treating someone less favourably because they associate with an individual who has a protected characteristic. For example, treating someone less favourably because their son has undergone gender reassignment.
This is treating someone less favourably because it’s perceived that they have a protected characteristic, whether they do or not. For example, treating someone less favourably because it’s perceived that they have undergone gender reassignment when they have not.
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.
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. For more information, visit the Equality and Human Rights Commission website (see Useful contacts).
Specific issues relating to sex discrimination
Sex discrimination and equal pay legislation (which introduces equality in pay between men and women by implying an equality clause into the contract of employment) are both incorporated into the Equality Act 2010. Find out more on gender pay issues in our factsheet on equal pay. CIPD members can see more detail in our Equal pay law Q&As.
The Equality and Human Rights Commission has published a range of guidance on all aspects of the Equality Act (see Useful contacts). The Equal Opportunities Commission, one of the predecessors of the Equality and Human Rights Commission, published a Code of practice: sex discrimination1. Whilst not legally binding documents, the codes give guidance on good practice in the promotion of equality of opportunity in employment 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.
Pregnancy and maternity-related issues
A report commissioned by the Equality and Human Rights Commission estimated that the number of new mothers losing their jobs every year in Britain has doubled in the last 10 years2. And recent research from Citizens Advice found that the number of women seeking advice on discrimination around maternity and maternity leave issues has increased by almost 60% in just a year3.
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 as well as sex discrimination. It may also give rise to a constructive unfair dismissal claim.
CIPD members can find out more in our Maternity paternity and adoption leave and pay law Q&As.
Specific issues relating to gender reassignment discrimination
Protection against discrimination on the grounds of gender reassignment is part of the Equality Act 2010.
The legislation protects individuals who’ve undergone, or proposes to undergo the personal, social, and sometimes medical process of gender reassignment. There does not need to be any medical process so, for example, a transgender man who was assigned female at birth but has a male gender identity and lives as a man would be protected.
Good employment practices
Employers should screen policies and working practices to remove unfair discrimination and bias: this is key to effecting the creation of open workplace cultures where to be different is not a problem but an asset. It’s essential to address issues related to gender and gender reassignment as part of a coherent diversity strategy.
To change attitudes, organisations should be encouraging good employment practices through managing equality and diversity issues, communication and training, and addressing specific areas. Get an overview of managing diversity and the benefits it brings from our factsheet on diversity in the workplace.
Managing equality and diversity issues
Actions should focus on:
- Creating a culture of respect and dignity for all employees through effective implementation of well-designed policies and procedures, which support both individual and business needs.
- Fostering respect to realise different perspectives matter and that diversity is everyone’s responsibility.
- Making the business case for diversity – view this as an opportunity, not a threat.
- Assigning senior level responsibilities for driving diversity issues and allocating appropriate resources to drive change.
- Thinking inclusively when designing diversity policies and procedures to ensure they are transparent, fair and address different needs.
- Continually checking that policies and practices are bias free and fair, and are working across the organisation. Failure to carry out policy and practice reviews can undermine their effectiveness.
Communication and training
- Make it clear what standards of behaviour are required of everyone, what kinds of behaviour will not be tolerated and the consequences of breaking the behaviour codes. Ensure line mangers understand their particular roles in addressing all incidents of harassment and bullying 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.
- Seek to monitor the diversity of the workforce by asking employees for relevant personal information, guaranteeing confidentiality and that it won’t be used to disadvantage people unfairly.
- Be seen to act proactively and fairly on all incidents of harassment and bullying.
- Use employees’ networking and support groups as a way of making sure employees understand diversity issues and take them seriously in ways that focus on business needs.
- Make equality and diversity policies and statements easily accessible to all.
Addressing specific areas
- Ensure recruitment and selection processes are fair and diversity friendly. 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.
- Operate transparent and consistent appraisal and performance management processes. Have clear career paths including promotion and training opportunities for all employees.
- Revise policies and procedures, and terms and conditions of employment to ensure fairness and legal compliance. For example, reward and recognition policies, flexible working practices, dress code and the design of corporate uniforms (complying with the Acas guidance4 on dress codes and appearance in the workplace where appropriate).
- Improve the female balance at senior levels which remains a key challenge for organisations. 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. In Quotas and targets: how do they affect diversity progress? we discuss the pros and cons of quotas and other affirmative action policies, reviewing evidence from politics, education and the workplace. Listen to our podcast on boardroom diversity.
- EQUAL OPPORTUNITIES COMMISSION. (2003) Code of practice: sex discrimination. Manchester: EOC.
- EQUALITY AND HUMAN RIGHTS COMMISSION (2015) Pregnancy and maternity discrimination forces thousands of new mothers out of their jobs.
- CITIZENS ADVICE (2016) Sharp practice at work: maternity rights: Citizens Advice insight on the top four types of unfair treatment at work and what can be done about them.
- ACAS. Dress code. London: Acas.
Useful contacts and further reading
ACAS. (2016) Sex discrimination: key points for the workplace. London: Acas.
BURT, L. (2015) The Burt report: inclusive support for women in enterprise. London: Department for Business Innovation and Skills.
GOVERNMENT EQUALITIES OFFICE. (2015) Recruiting and retaining transgender staff: a guide for employers. London: GRO.
RUBENSTEIN, M. (2016) Discrimination: a guide to the relevant case law. 29th ed. London: Michael Rubenstein Publishing.
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Focus on gender identity. (2016) IDS Employment Law Brief HR. No 1047, June. pp10-19.
NEWMAN, D. (2010) Gender reassignment: new rights for trans people. Equal Opportunities Review No 205, October, pp21-22.
This is still a man’s world. (2015) Labour Research. Vol 104, No 3, March. pp10-12.
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