Explore the UK legal position and main issues employers face when dealing with sex discrimination in the workplace.
Sex discrimination occurs when someone is unfairly disadvantaged for reasons related to their sex.
The main piece of legislation governing sex discrimination in the UK is the Equality Act 2010. UK courts and tribunals must currently interpret legislation in a way that is consistent with European Union (EU) legislation.
The Act protects:
- workers and agency workers
- some self-employed people (provided they provide the work personally)
- job applicants
from discrimination by an employer. Specific groups, such as police officers are also included.
The government has produced Equality Act 2010: guidance and there is also a helpful and detailed Code of practice on employment and other non-statutory guidance available from the Equality and Human Rights Commission.
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The Equality Act 2010 sets out a number of protected characteristics, split into several categories. Those relevant to gender and sexuality in a broad sense include:
- sexual orientation
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity.
In most sex discrimination cases the complainant is a woman, but these provisions apply equally to all who suffer from discrimination.
Sex discrimination, sexual orientation and pregnancy and maternity discrimination are completely separate protected characteristics, although the same legal approach applies (see Sexual orientation discrimination Q&As).
Types of sex discrimination
There are four main types of discrimination:
Sex discrimination occurs when someone is unfairly disadvantaged for reasons related to their sex. Although most sex discrimination occurs against women, discrimination against men is just as unlawful as discrimination against women.
It is unlawful for a woman to discriminate against another woman because of her sex, and for a man to discriminate against another man because of his sex. The principles apply equally to discriminatory treatment based on marital status.
An employer is liable for direct discrimination on gender grounds if it treats a person less favourably than other people because of his or her sex. For example, an employer states a management role is better suited to male applicants.
There are usually three ways of directly discriminating, treating someone 'less favourably' because:
- of their own sex (direct discrimination)
- they are thought to have a protected characteristic (perceived discrimination)
- they associate with someone who has a protected characteristic (associative discrimination).
Unlike cases of indirect sex discrimination, there is no defence of justification in response to a claim of direct sex discrimination.
How direct sex discrimination occurs
Some examples of direct discrimination include:
- not interviewing a woman long distance lorry driver because the employer thinks all men are better drivers
- not promoting a woman to a more senior position because it's assumed she will have a baby at some point soon and lose commitment
- insisting women wear different clothing at work to men, for example, short skirts or high heels.
Some sex discrimination protection applies outside the employment field in the provision of public services.
A claimant has to show that they’ve been treated less favourably than someone of the opposite sex would have been in similar circumstances. Therefore complainants alleging direct discrimination usually have to compare themselves with either an actual or hypothetical person (known as the comparator) to show they have been subjected to less favourable treatment.
A real or hypothetical comparator is not always needed in a direct discrimination case. If the evidence points to direct discrimination without the benefit of a comparative exercise, for example, discriminatory comments, then a comparator may be unnecessary (see Laing v Manchester City Council , 2006).
To meet the statutory definition of discrimination, the comparator must be in the same position in all material respects as the claimant, except that the comparator does not have a protected characteristic.
General points to note about comparators are that they may be:
- employed by the same employer as the complainant
- employed by an associated employer
- work at a an establishment of the employer which is different to the one at which the complainant works, but where common terms apply.
Comparators are not required for claims under the harassment and victimisation provisions of the Equality Act 2010, or for claims involving the protected characteristics of pregnancy and maternity.
Indirect discrimination can be summarised as a provision, criterion or practice (PCP) which is applied equally to all employees in the same way, but which has a particular disadvantage for women compared to men (or vice versa) and which has the effect of putting the claimant at a disadvantage because of their sex.
One key difference between direct and indirect discrimination is that the employer can effectively defend a claim of indirect discrimination if the provision, criterion or practice can be justified as a proportionate means of achieving a legitimate aim of the business.
How indirect discrimination occurs
Some examples of indirect discrimination include:
- A requirement for candidates to be aged 25-32 may indirectly discriminate against women because they are statistically more likely to be having children at this point in their lives (and may be age discrimination as well).
- A mobility clause requiring relocation to any site in the UK may indirectly discriminate against women because they are more likely to be secondary earners and therefore less able to relocate for work.
- An employer only promoting staff to be managers if they agree to work evenings and weekends. This could be discriminatory against women because they’re more likely to have childcare commitments that stop them working evenings and weekends.
Victimisation has a very specific legal meaning; it does not mean just picking on someone and making them a victim in the lay sense of the word. Victimisation applies if a man or woman is subjected to any detriment because he or she brought a claim for sex discrimination under the Equality Act 2010, or because he or she gave evidence in any sex discrimination claim.
It does not matter whether the original underlying claim is successful or not. In a victimisation complaint, sex discrimination is not in issue; what is relevant is the conduct of the employer in consequence of the employee bringing a claim or assisting another to bring a claim.
A comparator is not needed to measure the treatment of the ‘victim’ with another person who has not made or supported a complaint under the Act.
How victimisation occurs
An employee or worker has the right not to be treated less favourably because they have committed a ‘protected act’.
For example, a manager treats an employee less favourably because he or she thinks that the employee is involved (or intends to be involved) in an allegation that the organisation has breached the Equality Act 2010.
Or, for example, a male teacher witnesses a female colleague being sexually harassed at work by the male headteacher and offers to supply a statement confirming what he saw. The headteacher then gives the male teacher a poor appraisal report because of his support and rejects his application for a promotion.
If an employer pressures an employee, even indirectly, to settle or abandon their discrimination claim, this can constitute victimisation too. (See St Helens Metropolitan Borough Council v Derbyshire, 2007. This case was decided pre-Equality Act 2010, but remains an applicable example of victimisation.)
The definition of harassment in the Equality Act 2010 refers to unwanted behaviour (including verbal, non-verbal or physical conduct of a sexual nature) which has the purpose or effect of:
- violating a person’s dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment.
Harassment also occurs when a person rejects or submits to the unwanted conduct, and are then treated less favourably than they would otherwise have been treated. Employees and workers can complain of some behaviour that they find offensive even if it is not mainly directed at them.
How harassment occurs
Examples of harassment relating to sex can be summarised in three categories.
Humiliated, offended or degraded
The first type of harassment occurs when the employee feels humiliated, offended or degraded. The definition covers harassment which is overtly sexual in nature and that which is not (see Marks v Derbyshire Healthcare NHS Foundation Trust, 2013).
An example of ‘harassment’ which is not sexual in nature but would be covered by the definition, is that of an office worker who deliberately places frequently used documents on shelves that are out of the reach of his shorter female colleague.
Another example is a manager making comments that generally women are too emotional for managerial work in a sales department because they take things too personally. These are general comments, and are not directed at a particular female employee, but could make female staff worry about their promotion prospects and could be the basis of a harassment claim.
The second example is actual sexual harassment when the employee still feels humiliated, offended or degraded but this is because they are treated in a sexual way. For example, remarks from a manager that a female should wear a short skirt and a see-through blouse showing plenty of cleavage if she wanted to be successful during a promotion interview (see Driskel v Peninsula Business Services Ltd, 2000. This pre-Equality Act case remains a valid example of how sex discrimination law works, showing that not objecting to offensive remarks made by a manager for fear of affecting promotion prospects did not stop those remarks amounting to harassment.)
This unwanted conduct of a sexual nature covers verbal and physical treatment, like sexual comments or jokes, touching, persistent requests for dates, leering and suggestive gestures, invasion of personal space, or assault. It also covers sending emails of a sexual nature, or pornographic pictures.
The third type of harassment is when an employee is treated unfairly because they refused to put up with sexual harassment. It is still harassment even if the employee had previously accepted sexual conduct. For example, a female manager invites a new male employee home after an office party but he refuses. He is later told he has not passed his probationary period and he believes this is because he turned down the invitation.
Harassment can never be justified. However, if an employer can show it did everything it could to prevent employees perpetrating harassment the organisation may have a defence, although the employee could make a claim against the harassing employee in person.
Under the Equality Act 2010, ex-employees are protected against direct and indirect discrimination, and harassment and victimisation, even after termination of employment. Problems have arisen since the Act came into force because it did not mention victimisation. Following a decision of the Court of Appeal, it appears that the post-termination victimisation is covered too (see Jessemey v Rowstock Ltd, 2014).
This means that ex-employees can bring a claim of victimisation against their former employers, which is particularly important with regard to post-employment references (see our References Q&As).
Third party harassment
An employer is liable for any acts of unlawful discrimination (including sex discrimination) carried out by its employees during the course of their employment – unless the employer can show that it has taken reasonable steps to prevent those acts. All employers must have an anti-discrimination policy.
More complicated legal issues arise where an employee has been harassed by a third party, rather than a fellow employee. There were specific third-party harassment provisions in the legislation which were removed by the UK government, but employers are not safe from claims if one of their employees has been harassed by a third party because they could still be liable for what a third party does under the normal rules covering discrimination and harassment.
Organisations should remain vigilant and proactive in response to allegations of harassment and should take any discriminatory acts by its customers or clients seriously, and be seen to implement measures to protect their employees and workers.
There numerous ways for an employee to bring a claim, including the following.
Breach of contractual duty of care
Employers are under a general common law duty to take reasonable care of the safety of their employees. This is read into all employment contracts as an implied term. To make the employer liable for the harassment, the employee would need to show psychological or physical injury.
Direct or indirect discrimination
Employers may also be liable for ‘normal’ direct or indirect discrimination. For example, an employee who is directly and repeatedly asked to put up with a customer harassing them may claim direct discrimination, and an employer’s failure to take reasonable steps to prevent third-party harassment of its employees could be indirect discrimination.
If an employer fails to comply with the implied term requiring it to take care of the employee or comply with the other health and safety obligations, this could amount to a breach of contract entitling the employee to resign and claim that they were constructively unfairly dismissed. To bring a claim, the employee would have to resign in direct response to the employer’s failure to protect them from the third-party harassment.
Health and safety
Under the relevant health and safety legislation, employers should protect the health, safety and welfare at work of all their employees. Employers must carry out ‘suitable and sufficient’ assessments of risks and introduce appropriate preventive and protective measures. This may apply to third-party harassment if an employer fails to protect its staff from the reasonably foreseeable risk of harassment by third parties.
Protection from Harassment Act 1997
Although it is a relatively underdeveloped area of law, theoretically an employer who has failed to protect an employee from extreme persistent harassment by a third party could face claims under the Protection from Harassment Act 1997.
An employer’s failure to take action against third-party harassment may itself be harassment by the employer under section 26 of the Equality Act 2010 definition of harassment. In the consultation document and debates surrounding the removal of specific third party harassment provisions, one of reasons given by the government was that such situations will be covered to a certain extent by the general definition of harassment.
For a claim to succeed, the employee would have to prove that the employer’s failure to take steps to prevent the third-party harassment created an offensive or humiliating environment. A failure to act that leaves an employee in a situation where they will be harassed can amount to harassing conduct.
The employer’s inaction must be related to a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, and sexual orientation). This suggests that the employee may have to show that both the third party’s harassment and the employer’s failure to protect the employee must both be related to the protected characteristic.
Harassment must usually be associated with the protected characteristic, rather than ‘caused’ by it. Employers may be vicariously liable for sex discrimination because of a failure to prevent harassment of employees by a third party, but only if the reason why it failed to prevent the harassment by a third party was in part related to the sex of the employee.
The following principles may be used against employers in third party harassment claims, even though the cases pre-date the Equality Act 2010:
If the employer’s inaction is because the relevant manager is ill or so inefficient as to fail to deal with an issue, or the inaction is attributable to other reasons which have nothing to do with a protected characteristic, the inaction might not be discrimination (see Conteh v Parking Partners Ltd, 2010).
Unsafe working environment
An employer may fail to keep a work environment safe if staff are exposed to harassment by a third party. For example, where a well-known performer had the reputation for singling out women for racist and misogynistic abuse, it was reasonably foreseeable (or ought to have been) that the staff should be protected. In what has become known as ‘the Bernard Manning case’, the employer was held liable for the harassment of two of its black female waiting staff when subject to abuse by a performer at a private party held at the employer’s hotel (see Burton v de Vere Hotels, 1996).
The Employment Appeal Tribunal has held that an employer was liable for discriminatory acts committed by agency workers (see Gravell v London Borough of Bexley, 2007 and Mahood v Irish Centre Housing Ltd, 2011).
Protecting employees against third party harassment
At the very least, employers should:
- act promptly on any discriminatory acts by customers or clients against employees and behave supportively towards an employee who complains of such harassment
- have a policy on harassment which employment contracts cross-reference to
- encourage employees to report any harassment
- investigate all complaints of harassment
- be proactive to prevent harassment in the first place.
Organisations should also be seen to implement measures which make clients, customers and visitors aware of a zero-tolerance attitude to harassment – this will include displaying a notice forbidding any potentially discriminatory comments or abuse on the grounds of age, sex, race religion, sexual orientation. A perfunctory notice alone is very unlikely to be sufficient to protect the employer.
Positive action has a very specific meaning and is widely misunderstood. It should not be confused with positive discrimination which is always unlawful. So, organisations should not give preferential treatment to a woman because women are under-represented in its workforce. Whilst the employer may wish to correct a gender imbalance, appointing a less qualified woman rather than a man who was the best candidate is discriminatory against the man. It is also unlawful to set quotas to recruit or promote a specific number or proportion of women or men.
There are a very small number of situations under the Equality Act 2010 where, if an employer chooses, it can take positive proportionate steps to compensate for disadvantages that it reasonably believes are faced in the workplace to help an under-represented group (for example, women) in its workforce. Separate provisions allow positive action in relation to recruitment and promotion in limited circumstances. For example, an employer could favour a minority candidate (for example, a woman) provided she is as qualified as another candidate for a job.
Positive action is lawful when taken to:
- enable or encourage people who share a protected characteristic to overcome a disadvantage connected to the characteristic
- meet the needs of people who share a protected characteristic where those needs are different to those of people who do not have the characteristic
- enable or encourage people who share a protected characteristic to participate in an activity in which their participation is disproportionately low.
Employers can encourage people from disadvantaged groups to apply for work and can provide training to help them. For example, an employer that has records that show that women are under-represented at management level could run a management training course targeted at women.
Equally qualified candidates
Decisions on recruitment must be made on merit unless the candidates are ‘as qualified as’ each other. An employer can treat a woman or a man more favourably in connection with recruitment or promotion than someone of the other sex who is as qualified for the role. The employer must reasonably think that, for example, women suffer a disadvantage or are under-represented in that particular activity.
For example, an App design company has a vacancy for a senior job. All the other senior jobs at that level are done by men. The company finds that two of the applicants – a man and a woman – could both do the job equally well. The employer could decide to take positive action and give the job to the woman – but if the man would be able to do the job better, that would be direct discrimination against the man and unlawful.
Taking positive action must be a proportionate means of enabling or encouraging people to overcome the disadvantage or to take part in the activity. Employers can’t have a policy of treating women or men more favourably generally; but they can decide whether or not to take positive action on a case-by-case basis.
(Positive action for disabled people is different because employers have a positive duty to make reasonable adjustments to compensate for disadvantages related to disability.)
Most positive action issues tend to arise at the recruitment stage – for other aspects see our Recruitment and selection Q&As.
Sex discrimination compensation is uncapped and claims can be high. In 2011, just two cases involving sex and race discrimination cost the NHS nearly £5.5 million. According to Employment Tribunal Service statistics, the average award for successful sex discrimination claims between April 2017 and April 2018 was £13,212 and the highest award was £36,616.
Awards vary considerably, depending upon the employee’s treatment, salary and future prospects. Injury to feelings awards may increase the compensation for lost salary. The following cases illustrate different aspects of compensation.
Managers may be personally liable for compensation payments as well as employers. For example, in a case involving three respondents – the employer and two of its managers – an employee who had had a baby and who was coming back to work part-time for the employer (which was in administration by the time of the hearing) was unfairly dismissed. She also established sex discrimination. The employment tribunal held that:
- The employer should be liable for the £3,000 injury to feelings award.
- The employer should be liable for the 25 per cent uplift on the injury to feelings figure, the compensation for unfair dismissal and the award for unlawful deductions and loss of holiday pay.
- The managers should each contribute 20 per cent of the injury to feelings award.
The employee won her appeal to establish that the three respondents should be jointly and severally liable for the awards. The Employment Appeal Tribunal said that compensation for loss of earnings should be joint and several, that is, all of the respondents should be liable for it. However, this did not apply to the 25 per cent uplift (see Catanzano v Studio London Ltd, 2012).
Larger payments arise if the employee is unlikely to work again. A former NHS consultant was awarded one of the largest ever discrimination payouts (just under £4.5 million) for sex and race discrimination and unfair dismissal. The compensation covered loss of earnings and loss of pension on the basis that she would never again work as a doctor because of her severe ill-health caused by the NHS’s treatment of her. As well as an award of compensation for care and medical treatment, there were awards for injury to feelings and psychiatric damage (see Michalak v The Mid Yorkshire Hospitals NHS Trust, 2011))
High payments also arise for senior executives with high salary packages. An employee at an investment bank was subjected to severe abuse by her male colleagues. The employment tribunal found she had suffered ‘disgraceful’ sex discrimination, including harassment and victimisation, which led to a mental breakdown and her never being able to work in the financial services industry again. She received:
- £3.14 million for lost earnings
- £44,000 injury to feelings (exceeding the top band of £33,000 suggested in the Vento case)
- £15,000 aggravated damages because the employer’s behaviour had aggravated the injury (see Lokhova v Sberbank, 2015)
For general guidance on compensation for discrimination is calculated, see Tribunal claims, settlement and compromise Q&As.
Applying different clothing or appearance rules to men and women can give rise to claims of sex discrimination. For example, a female employee dismissed for wearing trousers, in breach of a dress code, would be directly discriminated against if no equivalent dress code or appearance rule applied to male employees.
Case law shows that restrictions on appearance do not have to be identical for both sexes, provided they relate to conventional standards or other non-discriminatory grounds (for example, health and safety reasons). A dress code that requires a conventional standard of appearance from both sexes is not in itself discriminatory, and a claim of sex discrimination would be unlikely to succeed (see Smith v Safeway plc, 1996).
In one case, a male employee complained that the dress code was discriminatory against men, because only men were required to wear a specific item of clothing (a tie). The EAT said the requirement for male members of staff to wear a tie was not necessarily discriminatory but that clothing rules should be looked at as a whole to assess whether they were more restrictive for one sex than the other (see Department for Work and Pensions v Thompson, 2003).
As a matter of good practice, employers should:
- consider whether a dress code is necessary at all
- co-ordinate the dress code with the health and safety policy on protective clothing
- consult with workers (including the relevant union) when developing the dress code
- carefully explain the reasons behind the dress code, for example, health and safety reasons or representing the company brand
- provide an appeal mechanism for employees who are unhappy with the way the code affects them
- be consistent in the application of the dress code.
Under the Equality Act 2010 employers should also give careful consideration to any religious discrimination their dress codes could give rise to (see the Religious discrimination Q&As).
Acas also has guidance on dress codes and appearance in the workplace.
Pregnancy or maternity discrimination
It is discrimination to treat women negatively on the basis of pregnancy or maternity. Under the Equality Act 2010 pregnancy and maternity are a separate protected characteristic from sex. However, treating a woman differently when she returns from her maternity leave may be sex discrimination.
For example, it is direct discrimination to refuse to employ or promote a woman because she’s pregnant. Pregnancy is a condition unique to women, so a comparator is expressly not needed for claims of pregnancy and maternity discrimination. It would also be an automatically unfair dismissal.
The general principle is that women should not be disadvantaged by their pregnancy or maternity. In the case of women who are pregnant or on maternity leave, the legal test is not whether the woman is treated worse than someone else, but whether she is treated unfavourably.
For example, a firm of solicitors denied a trainee a place in a firm as a qualified solicitor once she announced her pregnancy. From the moment the firm discovered she was pregnant, it lost interest in her, and the number of places available in the department the trainee had applied for was artificially reduced from two to one (see Tantum v Travers Smith Braithwaite Services, 2013).
Different treatment may be permitted only if it is absolutely necessary to comply with the health and safety laws to protect pregnant women and new mothers.
There is a sex discrimination risk when women return from maternity leave and seek flexible working. Some employers will welcome the arrangement proposed, but those who do not must follow a reasonable process and carefully consider their reasons for refusal.
Cases of discrimination can arise after a return from maternity leave. Pregnancy and maternity discrimination under the Equality Act 2010 covers pregnancy, illness suffered during pregnancy and unfavourable treatment due to taking or seeking maternity leave.
If the treatment is because the employee is pregnant or is related to her maternity leave then it is automatically discriminatory. Unfavourable treatment because of pregnancy or maternity which is outside the protected pregnancy and maternity period (that is, once the woman has returned to work) is more likely to amount to sex discrimination. The following cases show aspects of maternity-related sex discrimination claims can arise.
Unpaid parental leave
A new mother with an exemplary work record requested unpaid parental leave but was instead dismissed for ‘gross misconduct’. She won a claim for sex discrimination, unfair and wrongful dismissal, unreasonable refusal to allow parental leave and unlawful deductions from wages (see Van Heeswyk v One Call Insurance Services Ltd, 2015).
Requiring attendance at training courses involving ‘extra long hours’ can indirectly discriminate against a female employee who had just returned from maternity leave (see Hamilton v Chief Constable of Merseyside Police, 2014).
A female employee asked if she could reduce her hours and work one day a week from home. Her request was declined on business grounds, but the employer made various compromise suggestions. No agreement could be reached and the employee resigned. She lost both claims of indirect sex discrimination and breaches of flexible working legislation. Although the ‘provision, criterion or practice’ that the roles could only be carried out full time put a woman at more of a disadvantage than a man, because women are more likely to be single parents, the employee in this case could not prove that she, personally, would be at a disadvantage (see Smith v Gleacher Shacklock LLP, 2015).
A sales assistant worked rotational shifts, including weekends, and before she went on maternity leave she believed she had been promised part-time work on certain days. The employer agreed to part-time working on her return, but only as part of a rotation including some weekends. The employment tribunal held that the employee had suffered indirect sex discrimination and had been constructively dismissed. However, the EAT suggested that the employer did not necessarily discriminate: it may have been justified in aiming to provide experienced cover at weekends (its busiest days), and to play fair with other employees on the rota system. The EAT therefore said the indirect sex discrimination claim had to be reconsidered by a fresh tribunal, as there were insufficient findings of fact about the alleged disadvantages and objections to the weekend shift work (see Shackletons Garden Centre Ltd v Lowe, 2010).
Discrimination against men
Sex discrimination against men is just as unlawful as sex discrimination against women but, generally, different treatment for women on the basis of pregnancy or maternity will not discriminate against men. It is, therefore, usually not sex discrimination against a man to make special provision for a woman in connection with her pregnancy or maternity. For example, a woman allowed time off to attend swimming classes for pregnant women at a nearby gym, does not receive ‘better’ treatment than a male colleague refused permission to go to fitness classes during working hours, provided she makes up the lost hours at another time. However, if the man requires different treatment, such as enhanced benefits due to his parenting responsibilities, then a discrimination claim is more likely to arise (see ‘Is it sex discrimination for an employer to offer different maternity pay and shared parental pay to women and men?’).
Defending a claim
In most cases, employees should follow their organisation's grievance procedure and the Acas Code of practice on disciplinary and grievance procedures before making a discrimination claim (see Muschett v Parkwood Healthcare, 2007). This means that organisations will often have the opportunity to resolve difficulties before a claim is presented in a tribunal.
However, once a discrimination claim has been presented, there are some limited explanations that an employer can use to defend it. Whether an organisation can attempt to justify or defend a discrimination claim depends on the precise nature of the claim being brought.
The only defence to a direct sex discrimination claim is to prove that there was no sex discrimination, perhaps by showing that the comparator would have been treated in the same way.
There is no justification defence for direct discrimination claims, apart from age discrimination.
In rare cases, however, the employer may be able to show an occupational requirement (see below).
The defence of justification may be available for an indirect discrimination claim (but not for a direct claim). In relation to indirect discrimination, an employer may be able to justify the application of a discriminatory provision, criterion or practice (PCP) and escape liability by showing that the PCP is a proportionate means of achieving a legitimate aim, for example, planning for staff development and promotion. The sole aim of reducing costs is not likely to be a legitimate aim.
The courts will carry out a balancing exercise between the employer's need to impose the PCP and its discriminatory effect. For example, a contract clause requiring sales representatives to travel around the country is likely to indirectly discriminate against women with childcare responsibilities but may be justified by the needs of the role.
An employer facing a claim for harassment, stemming from acts committed by its employees, may have a defence if it can prove it took reasonable steps to prevent its employees from committing harassment. Organisations would have to show they had taken steps before the discriminatory acts occurred, not remedial action later.
In practice, this would include demonstrating that the employer had an equal opportunities policy that was enforced, and that all staff had been trained in its meaning and application.
Victimisation claims are rare. For a claim to succeed, the claimant must show that the other party has committed an act which contravenes the Equality Act 2010. An organisation may be able to defend a claim on grounds that another employee perpetrated the victimisation, and that the employer did not authorise the discriminatory act.
While defences to direct discrimination claims are very rare indeed, it is not unlawful to discriminate in relation to certain roles where there is an occupational requirement to be of a certain sex, race, religion, sexual orientation and so on. This defence is rarely used and has become even rarer since the enactment of the Equality Act 2010.
An organisation would have to show that the specified occupational requirement is:
- a genuine and determining occupational requirement for the role
- a proportionate means of achieving a legitimate aim.
An occupational requirement can only arise for a few specific jobs that have to be performed by people with a protected characteristic. It is important to understand that this exception is very limited indeed. In rare cases, discrimination by the employer in favour of a particular protected characteristic will be allowed provided the employer can show that the discriminatory requirement is a ‘proportionate means of achieving a legitimate aim’.
For more information on this issue in the context of recruitment and selection, see our Recruitment and selection Q&As.
This is a very important aspect. In most kinds of civil legal proceedings, the claimant has to prove their case. However, discrimination claims are different. The basic principle has always been that once an employee has established some initial evidence which suggests that, in the absence of an adequate explanation, there could have been discrimination, the employer must prove it has not discriminated. This is a heavy burden for employers to discharge. For example, a female employee could claim that she was not selected for promotion because she was a woman. Provided she produces some evidence to that effect, her employer would then have to prove that the reason she did not get the job was for some non-discriminatory reason.
For more information on this, see our Race discrimination Q&As.
Are all trans staff covered by the Equality Act 2010?
Under the Equality Act 2010, gender reassignment is a separate protected characteristic. The terms ‘gender reassignment’ and ‘transsexual’ were originally used in the Act but terminology evolves and the broader umbrella of ‘trans’ now refers to people whose gender is different from the sex they were allocated at birth. The Act has been criticised for being unclear about who is covered by the Act and who isn’t.
The law protects trans men and women. For example, a trans man who was assigned female identity at birth but has a male gender identity and lives as a man would be protected. The Equality and Human Rights Commission in its guidance on gender reassignment discrimination says, ‘You can be at any stage in the transition process – from proposing to reassign your gender, to undergoing a process to reassign your gender, or having completed it’. This includes people who:
- start the gender reassignment process, but decide to stop
- do not seek medical advice, but have counselling to start the process and present as the other sex without any medical intervention or further treatment.
Provided someone’s gender identity differs from the gender they were assigned at birth, the person falls within the legislation. Stonewall explains that to undergo gender reassignment ‘can include undergoing some sort of medical intervention, but it can also mean changing names, pronouns, dressing differently and living in their self-identified gender’.
Non-binary and perceptive discrimination
Current definitions mean that some employers have attempted to argue that the law does not protect some people, for example, those who identify as non-binary, in other words someone who ‘does not subscribe to the customary binary approach to gender, and who may regard themselves as neither male nor female, or both male and female, or take another approach to gender entirely’ (see Government Equalities Office guidance for employers on recruiting and retaining transgender staff).
An employment tribunal has found that individuals who identify as gender fluid and non-binary are protected under the rather dated wording about gender reassignment in the Equality Act 2010. So, case law has said that protection should extend to individuals who identify as gender fluid and non-binary (see Recent case law, Taylor v Jaguar Land Rover, 2020).
Acas’ guidance on gender reassignment also says that ‘someone with a non-binary identity could be protected if they are discriminated against because they are thought to be considering, thought to be going through, or thought to have gone through gender reassignment from man to woman or woman to man, regardless of whether this perception is correct or not’. The category ‘perceptive discrimination’ partially covers gaps in the legislation, and case law has indicated that the law can be interpreted so that non-binary people are covered.
How the law works
A male employee working for a chain of coffee shops occasionally comes to work wearing a skirt. The area manager doesn’t like this and refuses to consider the employee for a promotion. The employer knows the employee well and knows they are not trans. The employee would not have a claim as the legislation does not provide for someone who wears different clothing when their employer knows they are not trans.
A man wearing make-up and nail varnish applies for a job in a café. The interviewer assumes that he is trans and does not offer him the job, even though the applicant had ideal experience. The job applicant would have a claim for direct discrimination even though he is not trans.
Therefore, not all employees and job applicants are protected. If an employer assumes that an employee is trans (even if they are not) then the employee will be covered. If someone is cross-dressing as part of their transition, they are covered. The legislation does not provide for someone whose employer assumes they are not trans.
To be protected, a transsexual person does not have to inform their employer of their gender reassignment status although, as a matter of best practice, the environment at work should be such that a worker should feel able to discuss their needs with the organisation so it can support the worker during the process.
If an employer requires proof of a person's legal gender, then their (new) birth certificate should be sufficient. Although the Gender Recognition Act 2004 provides for gender recognition certificates, employers should not automatically ask to see one as evidence of a person’s legal gender. These certificates simply mean the person should be treated according to their acquired gender.
Absence from work
The gender reassignment process varies and can require many medical appointments, some employees may need to be away from work frequently. The Equality Act 2010 offers special provisions for this.
It is discriminatory of an employer to treat someone less favourably for absence related to gender reassignment, compared to how they would treat the same worker for being absent for a reason other than sickness or injury.
The Equality Act 2010 does not say how much time must be allowed for absence because of gender reassignment but employers should at the very least:
- discuss with the employee how much time they will need to take off
- accommodate those needs in so far as they are able.
Note that a person with ‘gender dysphoria’ (gender identity disorder) may be protected under the disability discrimination provisions of the Equality Act 2010 if there is a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities (see the Government Equalities Office guidance mentioned above for more information on this subject).
Is it sex discrimination to offer different maternity pay and shared parental pay to women and men?
The most recent case law decided that different rates of pay for mothers on maternity leave and fathers on shared parental leave (SPL) is not unlawful sex discrimination (see Recent cases, Ali v Capita Customer Management, below). However, the position is legally complex and different payments for female and male employees both taking periods of SPL may be unlawful discrimination.
There are a growing number of claims being brought by men claiming that reduced pay for SPL, compared to maternity pay, is discriminatory. Organisations may face attempted claims as the case law is new and appeals to the Supreme Court in the leading cases are still expected. To completely avoid any risk of claims, organisations that offer enhanced maternity rights should at least consider offering enhanced rights to men who take parental leave.
For example, if female employees are entitled to six months’ full pay after the birth of their baby, it is probably safer to consider granting male employees six months’ full pay too. Of course, this may lead some employers to question whether they can afford to continue offering enhanced maternity benefits. Other employers may rely on the current case law and say that they are not obliged to pay men equally for SPL. A fuller explanation of this issue is below.
Pregnancy and childbirth
The Equality Act 2010 expressly states that no account should be taken of the special treatment afforded to women in connection with pregnancy or childbirth when deciding on a man's sex discrimination claim. The sex equality clause (implied into all employment contracts, ensuring a woman’s contractual terms are not less favourable than a man’s) also does not affect those terms of work which give special treatment to women in connection with pregnancy or childbirth.
This means that employers who pay different rates for maternity leave and SPL have a good defence to run against claims, including those for direct and indirect sex discrimination or equal pay.
Subject to the Supreme Court confirming the Court of Appeal’s position in the Ali v Capita case, at the moment employers are able to treat maternity leave and pay differently from shared parental leave and pay, without the risk of male employees easily winning a discrimination claim.
Indirect discrimination and SPL
Employers should be aware that each case depends on its individual facts. In some cases underpaid fathers have won indirect discrimination claims. If a male employee compares a period of SPL not with maternity leave but with a woman receiving a more highly paid period of SPL, there may be a claim. In an earlier case, unlike the later cases, a father won his discrimination claim when men's and women’s entitlement to shared parental pay was compared. The case did not involve a comparison between pay for SPL and maternity pay (Snell v Network Rail, 2016).
Other problems can arise concerning unequal treatment with family-friendly rights and the pool for selection for redundancy (see De Belin v Eversheds Legal Services Ltd, 2011 in our Case law on family-friendly rights and the relevant question in the Redundancy Q&As).
Earlier cases have suggested that in indirect discrimination claims employers with a high percentage of male staff may be able to objectively justify offering generous enhanced maternity packages to attract women (see Shuter v Ford Motor Company Ltd, 2013).
Treating men differently
The legal issues in this question hinge on the fact that the purpose of maternity leave is partially to care for the mother’s health, as well as the baby. Because of this purpose, treating men differently can be justified. It is not clear at what point the purpose of maternity leave and pay changes into one that is more focused on caring for the child rather than the mother’s health. Some courts have suggested this would be at least 14 weeks or longer if the woman was breastfeeding. Other experts have argued that 26 weeks might be appropriate.
Shared parental pay arrangements do not have to be enhanced as the law stands. However as more fathers take up their rights, more legal challenges are likely. It is only a matter of time before another father attempts to argue that at some point during the 52-week maternity leave period, the purpose of the leave changes from being related to the mother’s health and safety, to being for the purpose of caring for the child, thereby allowing comparisons between the mother and the father or partner performing the same role.
For information on shared parental leave and pay increases and benefits during maternity leave, see the Maternity, paternity and adoption leave and pay Q&As.
Is it sex discriminatory to dismiss an employee for having an affair with a colleague?
Yes, it can be sex discrimination to dismiss an employee as the result of an affair with a colleague.
This kind of relationship is quite common in the workplace and may give rise to a number of legal issues. For example there may be:
- direct sex discrimination under the Equality Act 2010, if a woman is transferred from her post or dismissed because of a relationship with a colleague, and a man would not be transferred in the same circumstances
- direct marriage discrimination (that is, less favourable treatment of a married person compared with a single one) if a married woman is moved from her post because of a relationship with a colleague, and a single woman would not have been transferred
- indirect sex discrimination if an employer implements a policy stating that, in the event of a relationship at work, the lower-graded person in the couple is always dismissed, and never the higher-graded person.
Such claims can arise even if the relationship is not between employees of the same organisation, but between people who work for competitors.
For example, a woman was dismissed when she married the employee of a rival firm. The Court of Appeal held that her dismissal was both unfair and unlawful sex discrimination. The couple’s employers had discussed who should be dismissed. The wife’s dismissal was based on an assumption by the employers that her husband would be the primary earner in the marriage, and that constituted direct sex discrimination (see Coleman v Skyrail Oceanic Ltd, 1981).
Recent case law
Taylor v Jaguar Land Rover | Employment Tribunal | 21 September 2020
Issue: Inclusion of non-binary and other gender identity in Equality Act
An engineer worked for Jaguar for over 20 years and towards the end of that time informed the employer that she identified as gender fluid or non-binary.
She was subjected to successive jokes and insults from colleagues and alleged that the employer provided no support and did not address the use of the toilet facilities in the workplace, which concerned her. To summarise, she left and claimed harassment, direct discrimination and victimisation on the grounds of gender reassignment, and constructive unfair dismissal.
The employer’s defence included the fact that non-binary people were not included in the gender reassignment protections of the Equality Act 2010 and so there was no jurisdiction to bring the claim.
The employer lost. The Employment Tribunal said that the protected characteristic of gender reassignment in the Equality Act did include people who identify as gender fluid and non-binary.
The employment judge confirmed the spectrum nature of gender and found that it was right to give extra ‘aggravated’ compensation because of the insensitive way the claimant had been treated and the stance taken by the company in defending the proceedings. The HR director later issued an official apology to the claimant saying Jaguar would strive to improve. The compensation will be decided in October 2020 unless agreed between the parties before then.
Implications for employers
Gender-fluid and non-binary employees are protected under the Equality Act 2010. Employers should train managers to be aware of these protections and to take an intelligent broad approach to gender identity in an inclusive and tolerant workplace.
An employee who advises their employer that they identify as non-binary should be supported fully with good communication and adaptability on the part of the organisation. The employee can explain everything from the toilet arrangements they prefer to their preferred pronouns and other preferred treatment concerning their gender identity.
Employers should bear the following in mind:
- Gender identity issues are fundamental, requiring a supportive and sensitive approach. Diversity, equal opportunity, anti-bullying and specific gender identity policies may need to be updated in line with current standards and vocabulary around equality and inclusion.
- All levels of staff not just line managers need diversity and inclusion training. Staff members who identify as a gender which is different to that assigned to them at birth can be asked if they wish to be involved in devising any part of the training.
- Practical issues may include updating HR records and data to change relevant pronouns, installing gender-neutral toilets and making uniform adaptions where appropriate.
- Compensation for gender identity discrimination may lead to awards of aggravated damages because treatment by other employees is more likely to be considered serious, malicious or oppressive in cases such as these. It is generally rarely awarded in tribunals.
Podlecka v MYM Global Ltd | Employment Tribunal | 6 June 2018
Issue: Sex discrimination and harassment – compensation
Podlecka was employed as a cost estimator. She alleged sex discrimination and harassment in the workplace by the owner of the business and her line manager. After she had raised a grievance concerning her treatment, she was dismissed with comments that she was immature and the workplace was not a kindergarten. The manager had made comments of a sexualised nature and inappropriately touched her hand on a few occasions. Another employee had subjected her to abusive language and made derogatory comments about her religion and age. He treated her as a secretary and not in the same way as male colleagues. Although her line manager informally investigated Podlecka’s colleague’s conduct, the investigation did not sufficiently include Podlecka and, shortly after her email containing a formal grievance, she was dismissed. She claimed sex discrimination, unlawful deduction from wages, and notice pay.
The Employment Tribunal gave a default judgment, the employer having failed to respond to the claim. She was awarded over £15,000 in compensation, comprising £10,000 for injury to feelings plus:
- £1,750 for loss of earnings
- £350 notice pay
- £1,250 holiday pay
The award was uplifted by 25% because of the employer’s failure to comply with the Acas Code of Practice.
Employers must conduct fair, transparent and prompt investigations into employees’ grievances, especially allegations of discrimination. A failure to carry out a fair investigation will lead to a successful claim of sex discrimination.
The next two cases were heard together.
Ali v Capita Customer Management Ltd | Court of Appeal |24 May 2019
 EWCA Civ 900
Issue: Direct sex discrimination – shared parental leave
Capita’s shared parental leave (SPL) policy provided that men were entitled to full pay in the two weeks after birth, but were only entitled to statutory shared parental pay, which was much lower, during the following 12 weeks. During the two weeks’ leave, Ali’s wife was diagnosed with post-natal depression, and was advised by her doctor to return to work. Ali asked for further time off work to care for his daughter and wished to be paid the same rate as a female employee on maternity leave. At Capita, women got maternity pay for up to 39 weeks, with the first 14 weeks paid at full pay, followed by 25 weeks at the lower rate of statutory maternity pay. Ali was informed by Capita that he was only eligible for SPL at the statutory rate of pay. He claimed direct sex discrimination.
The Court of Appeal held that there was no sex discrimination because:
- Women on maternity leave were not comparable to men on SPL, because maternity leave and pay was intended to help women recover from the physical and psychological effects of childbirth.
- Maternity leave and pay’s purpose was not changed by the introduction of SPL.
- The proper comparator for direct discrimination purposes was a woman on SPL, who would be on the same terms as a man, and who would not receive any favourable treatment.
Ali has asked for permission to appeal to the Supreme Court.
It appears that employers can choose to enhance maternity pay but not shared parental pay without risking sex discrimination claims. However, note that this decision is subject to a possible appeal to the Supreme Court.
Pregnant women and new mothers on maternity leave cannot be compared with men on SPL because their circumstances are materially different. Maternity leave is for the health and safety of the mother following pregnancy and childbirth, to help her recuperate from the effects of pregnancy and childbirth, and to breastfeed her baby. SPL, on the other hand, is to enable parents to look after their child. So the proper comparator for a man on SPL is a woman on SPL.
Equal pay claims are treated the same way in law because there is an exception to the sex equality provisions, implied into all employment contracts by the Equality Act, for women who are pregnant, who have recently given birth or who are breastfeeding. Enhanced maternity pay is covered by this exception and there’s no basis for an equal pay claim.
The second of these two cases is below.
Chief Constable of Leicestershire Police v Snell |Court of Appeal | 24 May 2019
 EWCA Civ 900
Issue: Indirect sex discrimination – shared parental leave
Female officers were entitled to 18 months’ leave on full pay under the police force’s maternity leave policy. A police officer on SPL was entitled only to the (lower) statutory rate of pay. The officer in this case took SPL and claimed indirect sex discrimination on the basis that the lower pay rate for SPL caused particular disadvantage to men. The EAT found this was unlawful indirect sex discrimination.
The organisation appealed and during the appeal the indirect discrimination claim was adapted to include an equal pay claim. The officer argued that the sex equality clause provided for in the Equality Act 2010 should operate to increase his pay.
The Court of Appeal found that there was no indirect discrimination because:
- His claim for breach of contract as modified by the sex equality clause could not succeed because the Equality Act gives special treatment to women in connection with pregnancy or childbirth.
- Indirect discrimination claims cannot include equal terms claims.
Application for leave to appeal to the Supreme Court has been made in this case as well as in the Capita case above.
Employers can currently choose to enhance maternity pay but not shared parental pay without risking sex discrimination claims. However, this is subject to the possible appeal to the Supreme Court.
There are special provisions for pregnant women or those who have recently given birth or who are breastfeeding. Enhanced maternity pay is covered by this exception and, as a result, equal pay claims by men are prevented where their comparator is a pregnant woman or a new mother.
If the indirect discrimination claim had proceeded, this case suggests it would have failed anyway. Birth mothers cannot be compared to fathers as their circumstances are materially different. Therefore, a father cannot establish a particular disadvantage for male employees compared with women. Anyway, for an indirect claim there would be a justification defence as the different treatment is a proportionate means of achieving the legitimate aim of providing special treatment for mothers in connection with pregnancy or childbirth.
Both direct and indirect discrimination challenges by men concerning maternity pay therefore seem barred but it is likely that similar policies will be the subject of future challenge. Where the claim concerns SPL being paid differently to mothers and fathers then the claim is more likely to succeed.
Many employers do equalise family leave benefits, although these cases suggest that those who enhance maternity pay and not shared parental pay are taking a relatively low risk of a successful sex discrimination claim. Also see the implications in the Capita case.
Renowden v Office for National Statistics | Employment Tribunal | February 2019
Issue: Direct sex discrimination – injury to feelings
An experienced economist joined the ONS as a grade seven economist and then applied for a grade six post based in Newport. She was the only candidate who had been employed at this level previously. She had also previously worked at grade six in civil service roles in organisations including the Bank of England and the International Monetary Fund. When she applied for the two grade six posts advertised she was not even interviewed and was told she did not achieve the minimum requirement in the competency test. Both available roles were given to two younger men who had not worked at that level and did not specialise in macro-economics. The man appointed to the role she applied for had less than six years’ professional experience, compared to her twenty tears’ experience. A third role was later created, which also went to a man.
She had ADHD and it emerged one of the recruitment panel members had adjusted her score to enable her to attend the interview because her ADHD may impact her concentration and ability to process information. However, the other panel member persuaded him to reduce the score. The economist claimed sex discrimination against the ONS because she believed the denial of promotion was because of her gender.
The sex discrimination claim succeeded and the ONS were ordered to pay £19,000 in compensation for injury to feelings. The tribunal found that favouritism existed toward male staff in the ONS. There was an informal process that led to temporary promotions for males in substantially greater numbers than females which created an advantage in permanent promotion appointments. The approach to gender balance on the selection panels pointed towards a general culture where discrimination and, particularly sex discrimination, was not properly understood.
Employers should be transparent about recruitment, selection and promotion processes. Managers should be trained to implement an organisation’s policies to prevent discrimination in recruitment and selection for promotion, as well as when:
- determining pay, terms and conditions
- training and development
- selecting for redundancy.
Selection panels should be gender balanced. Employers can supply unconscious bias training for managers so they are less likely to make gender biased decisions.
Gan Menachem Hendon Ltd v De Groen | Employment Appeal Tribunal | February 2019
 UKEAT 59/18
Issue: Direct sex discrimination and harassment – dismissal over cohabitation
A Jewish teacher at an ultra-orthodox nursery lived with her boyfriend in contravention of the beliefs of ultra-orthodox Jews who were parents at the nursery. After her cohabitation had been discussed at a social event, the teacher was called to a meeting and although she was told that what she did in her private life was of no concern to the nursery, she was asked to confirm that she no longer lived with her boyfriend. This was in order that the nursery could tell anyone concerned that they had been told this. The teacher refused to lie and was dismissed and claimed discrimination on the grounds of religion or belief, and sex discrimination.
In the EAT she won her claims of sex discrimination but lost the religious discrimination claim. The teacher was dismissed because she refused to lie about living with her boyfriend, but this was not discrimination on the grounds of her religion or belief. The employer acted because of its own beliefs that cohabiting outside of marriage was not in keeping with the Jewish faith, not because of the teacher’s beliefs.
Following the Supreme Court guidance in the ‘gay cake case’, Lee v Ashers Baking Company, the court explained that the purpose of discrimination law is to protect someone with a protected characteristic from less favourable treatment because of that characteristic. The law did not protect people from less favourable treatment because of a protected characteristic of the discriminator. If someone claims discrimination, they must base this on their protected characteristic, or a perceived characteristic or a characteristic of someone associated with them. The EAT also rejected the indirect discrimination claim stating that the one-off request to lie about domestic arrangements could not amount to a provision, criterion or practice (see Types of sex discrimination above).
However, she had been a victim of direct discrimination and harassment on the grounds of sex and the level of compensation for that had to be decided.
This decision is one of the first following the Supreme Court’s decision in the Ashers bakery case.
The balance between religious beliefs in the workplace and attitudes to sexual behaviour is always a difficult one to strike and all staff should be trained on equal treatment and discrimination law. Organisations should keep their policies on equality and diversity under review to ensure they are up to date and that employees’ religion or beliefs are protected adequately in the workplace. Policies should include discrimination about cohabitation or marital status.
The law governing discrimination on the grounds of religion or belief covers only the religion, belief or lack of belief of the victim of discrimination, normally an employee in an employment context. It does not cover the beliefs of the alleged discriminator, usually the employer.
The Gan Menachem decision covers many other technical aspects of the law in discrimination claims, including that:
- associative discrimination does not cover the discriminator’s protected characteristic
- direct discrimination can be established, even though the discriminator shares the relevant protected characteristic with the claimant
- a provision criterion or practice involves an element of repetition, not a one-off ad hoc situation.
Employers should not suggest that employees lie about domestic arrangements or anything else. If they feel that employees are behaving in contradiction to the employer’s values, religion or beliefs, then the organisation should proceed with great caution before taking any action to the employee’s detriment.
No specific future developments are expected for sex discrimination law, although there have been some relevant related changes which are expected to have a knock-on effect on some aspects of sex discrimination law. For example, a number of recent developments are affecting the area of equal pay, which often overlaps with of sex discrimination (see our Equal pay Q&As).
Currently the Maternity and Parental Leave etc Regulations 1999 provide that if a woman on maternity leave is selected for redundancy, she must be given priority over other redundant employees when the employer offers suitable alternative employment.
Following the Taylor review of modern working practices, a consultation has put forward a proposal to extend this protection to women who have returned from maternity leave in the previous six months, not just those currently on maternity leave. The right could be extended to women who have told their employer that they are pregnant. The government is also considering extending the right to those on adoption leave, shared parental leave and longer periods of parental leave.
Interesting cases continue to emerge providing clarification on aspects of the Equality Act 2010. Supreme Court cases are expected concerning sex discrimination in the context of differences between enhanced maternity pay schemes and lower pay during SPL (see Recent case law above).
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