Explore the legal position and main issues employers face when dealing with sex discrimination in the workplace.
The main piece of legislation governing sex discrimination in the UK is the Equality Act 2010.
UK courts and tribunals must interpret the Equality Act 2010 and other legislation in a way that is consistent with European Union (EU) legislation.
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.
Who is covered by the sex discrimination aspects of the Equality Act 2010?
The relevant provisions of the Equality Act 2010 set 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 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 (Sexual orientation discrimination Q&As).
Is there guidance on the amount of compensation an employer will have to pay an employee who succeeds in a sex discrimination claim?
Sex discrimination compensation is uncapped and sex discrimination claims are the type of discrimination claim most often received by employment tribunals.
The total compensation awarded in discrimination cases in 2011 reached a record high of just under £9 million. This was primarily down to just two cases involving sex and race discrimination that cost the NHS nearly £5.5 million. This is, however, extremely unusual; the overall number of claims has dropped following the introduction of employment tribunal fees in July 2013 and early conciliation, which became compulsory from April 2014.
According to Employment Tribunal Service statistics, the average award for successful sex discrimination claims between April 2015 and April 2016 was £85,622 and the highest award was £1,762,130. This was the highest sum awarded in any tribunal claim in that 12-month period.
For general guidance on the approach to the calculation of compensation for discrimination, see Tribunal claims, settlement and compromise Q&As.
Case law examples
Some of the following cases were decided before the Equality Act 2010 came into force, but they illustrate how compensation is approached.
Cannock v Ministry of Defence (1994) is an extreme example of sex discrimination compensation. The Ministry of Defence operated a policy of dismissing women in the armed forces who became pregnant in accordance with section 85(4) of the Sex Discrimination Act 1975, which excludes service in the armed forces from the scope of the Act. This exclusion was found to be incompatible with the Equal Treatment Directive and that the policy of dismissing service women when they became pregnant constituted unlawful discrimination. There were several female claimants and the awards made to them ranged from £25,000 to nearly £200,000.
In Butler v Hertfordshire Police (2005) a policewoman was prevented from working flexible hours after returning from maternity leave. She received £93,000 sex discrimination compensation based on past wages and two years’ lost wages plus £2,600 in interest. She had resigned with post-natal depression and exhaustion after being made to work rotating shifts from 07:00 to 23:00, despite numerous requests for a flexible work pattern. An employment tribunal found that her line manager was unsympathetic to her requests for flexible work patterns and the superintendent blocked requests for a transfer to a more convenient post.
St Andrew's Catholic School v Blundell (2010) concerned a victimisation claim under the Sex Discrimination Act 1975. A tribunal granted the claimant £22,000 for injury to feelings, £5,000 aggravated damages and five years’ loss of future earnings. The tribunal initially recommended the employer should write to all parents and other teachers stating that the headteacher had no criticism of the claimant's teaching ability. The Employment Appeal Tribunal did not agree with this and reduced the compensation for injury to feelings to £14,000. It agreed with the aggravated damages and the award of five years' loss of future earnings. However, it said the headteacher did not have to make statements with which she did not agree.
Managers may be personally liable for compensation payments. In Catanzano v Studio London Ltd (in administration) (2012) there were three respondents – the employer and two of its managers. The employee had been unfairly dismissed after having a baby and coming back to work part-time for the employer (which was in administration by the time of the hearing). 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.
In Michalak v The Mid Yorkshire Hospitals NHS Trust (2011) 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 trust’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.
In Lokhova v Sberbank (2015) the claimant was subjected to severe abuse by her male colleagues at an investment bank. 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.
Q: Can an employee bring a claim of sex discrimination post-employment?
Yes. It is unlawful to discriminate against someone by subjecting them to a detriment where the discrimination arises out of, and is closely connected with, a relevant relationship (such as an employment relationship). Provisions in the Equality Act 2010 make it clear that post-employment discrimination is covered. An example of this would be refusal to provide a reference (see the References Q&As).
Q: What types of sex discrimination are covered under the Equality Act 2010?
An employer is liable for direct discrimination on gender grounds if, for example, it treats a woman less favourably than it would a man in the same circumstances. This applies equally to the discriminatory treatment of a man based on his sex or marital status.
It is now clear that a form of direct discrimination occurs when someone is treated less favourably because they are thought to have a protected characteristic (perceived discrimination), or because they associate with someone who has a protected characteristic (associative discrimination).
Complainants alleging direct discrimination have to compare themselves with either an actual or hypothetical person (the comparator) to show they have been subjected to less favourable treatment.
A claimant has to show that they’ve been treated less favourably than someone of the opposite sex would have been in similar circumstances. To meet the statutory definition of ‘discrimination’, the comparator must be in the same position in all material respects as the claimant, save only that the comparator does not have a protected characteristic.
General points to note about comparators are that the comparator may be employed by the same employer as the complainant, or by an associated employer, or even work at a different establishment of the employer, other than the one at which the complainant works, but where common terms apply at the establishments.
Comparators are not required for claims under the:
- harassment and victimisation provisions of the Equality Act 2010
- protected characteristics of pregnancy and maternity.
Case law examples
A restaurant manager claimed that he was told to dismiss older employees who were not ‘sexy’ and ‘blonde,’ and that he was replaced with an attractive 28-year-old woman because the bosses wanted a new and younger image.
An example of direct discrimination pre-Equality Act 2010 arose from a borough council’s offer of free swimming lessons to people over pension age (60 for women and 65 for men). The House of Lords held that, but for his sex, a man of 61 would have been entitled to the free lessons and therefore the council’s offer was discriminatory.
Unlike cases of indirect sex discrimination, there is no defence of justification in response to a claim of direct sex discrimination.
Indirect discrimination can be summarised as a provision, criterion or practice which is applied equally to men and women, but the employer cannot show it to be a proportionate means of achieving a legitimate aim and its effect is to put:
- women at a particular disadvantage when compared to men (or vice versa); or
- an individual at a disadvantage because of their sex.
The 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. For example:
- 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.
Provisions in the Equality Act 2010 make it clear that indirect discrimination also covers gender reassignment (see Are transsexuals or those contemplating gender reassignment covered by the Equality Act 2010?).
An employee has the right not to be treated less favourably because they have committed a ‘protected act’ – for example, an employee will be victimised if their manager treats them less favourably because the manager thinks that the employee is involved (or intends to be involved) in proceedings against the employer.
It will not matter whether the original underlying claim has been 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.
St Helens Metropolitan Borough Council v Derbyshire (2007) was decided pre-Equality Act 2010, but is still useful. The House of Lords decided that if an employer pressures an employee, even indirectly, to settle or abandon their discrimination claim, this can constitute victimisation.
The Equality Act 2010 makes it clear there is no longer a need to use a comparator to measure the treatment of the ‘victim’ with another person who has not made or supported a complaint under the Act.
The definition of harassment in the Equality Act 2010 refers to unwanted behaviour which has the purpose or effect of violating a person’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment.
A person is subjected to harassment when:
- because of their sex or other protected characteristic, they are the focus of unwanted conduct (including verbal, non-verbal or physical conduct of a sexual nature) that has the purpose or effect of:
- violating their dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for them
- they reject or submit to the unwanted conduct, and are then treated less favourably than they would otherwise have been treated.
The Equality Act 2010 also makes it clear that associative and perceptive discrimination are sufficient grounds for a claim to be made. This covers harassment based on a protected characteristic. Employees can complain of behaviour that they find offensive even if it is not directed at them.
The definition covers harassment which is overtly sexual in nature and that which is not (Marks v Derbyshire Healthcare NHS Foundation Trust (2013)). An example of ‘harassment’ which is not ‘sexual harassment,’ but which 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.
(See also Will an employer always be liable for sex discrimination when it has failed to prevent harassment on the grounds of sex, or sexual harassment of one employee by a third party?)
Another valid pre-Equality Act 2010 example is Driskel v Peninsula Business Services Ltd (2000), where a woman did not immediately object to offensive remarks by a manager because she didn’t want to affect her chance of promotion.
Q: Will an employer always be liable for sex discrimination when it has failed to prevent harassment on the grounds of sex or sexual harassment of one employee by a third party?
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. Employers should be protected from liability for harassment perpetrated by those over whom they have little or no control.
There are numerous legal obligations to protect employees from harassment, and employers should remain vigilant and pro-active in response to allegations of harassment. Employers must not think that they are safe from claims if one of their employees has been harassed by a third party. They could still be liable for what a third party does under the normal rules covering discrimination and harassment. There are numerous ways for an employee to bring a claim.
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 can be 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.
Normal ‘harassment’ claim under section 26 of the Equality Act 2010
An employer’s failure to take action against third-party harassment may itself be harassment by the employer under the Equality Act 2010 definition of ‘harassment.’
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).
In the consultation document and debates dealing with the removal of specific third party harassment the government said that such situations will be covered to a certain extent by the general definition of harassment.
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 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 (see Are employers liable for acts of discrimination carried out by employees?).
Other legal issues
Under the normal harassment provisions in the Equality Act 2010, the employer’s inaction must be related to a protected characteristic. This suggests 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 normally be associated with the protected characteristic, rather than ‘caused’ by it. Employers may be vicariously liable for 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 a reason related to the (race, sex, sexual orientation, age etc.) of the employee.
Cases that pre-date the Equality Act 2010, but may now be useful, include:
- Conteh v Parking Partners Ltd (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 cannot be discrimination.
- Burton v de Vere Hotels (1996) (aka ‘the Bernard Manning case’): On appeal, the employer was held liable for the harassment of two of its black female employees by guests and a performer at a private party held at its hotel. The employer had failed to keep the women’s work environment safe, and given the reputation of the performer it was reasonably foreseeable (or ought to have been) that the performer would single the women out for racist and misogynistic abuse – as, indeed, he did.
- Gravell v London Borough of Bexley (2007): The Employment Appeal Tribunal confirmed that in certain circumstances employers may be liable for harassment of its staff by third parties, in this case its clients.
- Also of note for similar reasons to Gravell is Mahood v Irish Centre Housing Ltd (2011), where the Employment Appeal Tribunal considered employer liability for discriminatory acts committed by agency workers.
It is not clear if the removal of specific third-party harassment provisions provides the level of protection against harassment in the workplace required by the EU. There may therefore be claims that employers (especially those in the public sector) or the government has failed to comply with the EU Directives, including the EC Equal Treatment and EU Framework Employment Directives.
Employers still face a risk of litigation despite the removal of the third-party harassment provisions. Case law ought to clarify when third-party harassment is covered by the normal harassment provisions in section 26 of the Equality Act 2010.
Employers should take any discriminatory acts by its customers or clients seriously, and be seen to implement measures to protect their employees from being harassed by clients, customers and site visitors.
Points for employers to consider
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 is cross-referenced to in employment contracts
- encourage employees to report any harassment
- investigate all complaints of harassment
- be pro-active to prevent harassment in the first place
- 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.
Q: Is positive action on the basis of a person's sex lawful?
The Equality Act 2010 extends the circumstances in which employers can favour a minority candidate (for example a woman) who is as qualified as another candidate for a job. Employers do not have to do this, but if they wish to adopt positive action they may do so.
Most positive action issues tend to arise at the recruitment stage – see What is positive action and how does it affect recruitment and selection? in the Recruitment and selection Q&As.
Q: Can employers introduce a dress code without being sex discriminatory?
The application of 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 from before the enactment of the Equality Act 2010 shows that employers do not have to impose exactly the same dress code for men and women. If the dress code applies ‘conventional standards of dress and appearance’ to men and women a claim of sex discrimination would be unlikely to succeed.
Case law examples
The Court of Appeal held that a dress code that requires a conventional standard of appearance from both sexes is not, in itself, discriminatory. Smith v Safeway plc (1996) demonstrates that restrictions on appearance do not have to be identical for both sexes, as long as they relate to conventional standards or other non-discriminatory grounds (for example, health and safety reasons).
Department for Work and Pensions v Thompson (2003) was widely reported in the press. A male employee complained that the dress code was applied differently to men and women, because only men were required to wear a specific item of clothing (a tie).
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.
Q: Is it sex discriminatory to treat a woman differently on the basis of pregnancy or maternity?
It is a form of discrimination to treat women negatively on the basis of pregnancy or maternity. This is distinct from sex discrimination, because 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, in addition to triggering a pregnancy discrimination claim.
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 from the time she tells the employer she is pregnant to the end of her maternity leave.
In Tantum v Travers Smith Braithwaite Services (2013) 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 to was artificially reduced from two to one.
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.
Discrimination following maternity leave
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 how sex discrimination claims can arise:
Unpaid parental leave In Van Heeswyk v One Call Insurance Services Ltd (2015) a new mother with an exemplary work record requested ‘normal’ 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.
Training courses In Hamilton v Chief Constable of Merseyside Police (2014) the employment tribunal held that requiring attendance at training courses involving ‘extra long hours’ indirectly discriminated against a female officer who had just returned from maternity leave.
Reduced hours In Smith v Gleacher Shacklock LLP (2015) a female employee asked to 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 claimed indirect sex discrimination and breaches of flexible working legislation, and lost both claims in the employment tribunal. 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.
Weekend working In Shackletons Garden Centre Ltd v Lowe (2010) a sales assistant worked rotational shifts, including on 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 on 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.
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.
Discrimination against men
Generally, different treatment for women on the basis of pregnancy or maternity will not discriminate against men. For example, a woman allowed time off to attend swimming classes for pregnant women at a nearby gym, so long as she makes up the lost hours at another time, does not receive ‘better’ treatment than a male colleague refused permission to go to fitness classes during working hours. It is therefore usually not sex discrimination against a man to make special provision for a woman in connection with her pregnancy or maternity. 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.
In 2015 the system of maternity and paternity leave changed. For parents whose child was expected on or after 5 April 2015, additional paternity leave was abolished and replaced with shared parental leave and pay. Most employers who 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 the baby, it is probably safer to consider granting male employees six months’ full pay too. This has led some employers to question whether they can afford to continue offering enhanced maternity benefits, and the law is currently not clear on this point.
Case law example
In Shuter v Ford Motor Company Ltd (2013) an employer introduced a generous enhanced maternity package whereby women on maternity leave got 100 per cent of their basic pay for 52 weeks. This was to encourage recruitment and retention of female employees to meet a diversity target of employing 25 per cent women. Male employees taking APL (which was the relevant system applying at the time) only received the standard statutory rate of paternity pay.
The claimant's wife returned to work after having a baby and he took just four months off to care for their son. He claimed he should receive 100 per cent of his pay during his APL to achieve parity with his female colleagues on maternity leave. He claimed direct and indirect sex discrimination and lost. The employment tribunal found that he was not entitled to the enhanced benefits and it was permissible to give special protection to women in connection with pregnancy and childbirth under both UK and EU legislation. In addition, the employer’s aim of recruiting more women to its male-dominated workforce was enough to objectively justify the policy of paying men and women differently.
This case arose based on comparing maternity leave with the old system of APL, which was replaced from April 2015 by shared parental pay. The decision suggests that employers with a high percentage of male staff may be able to objectively justify offering generous enhanced maternity packages to attract women.
By contrast, a man won his indirect discrimination claim in Snell v Network Rail (2016). Married employees of Network Rail planned to take time off to care for their child. Network Rail's policy entitled women to take up to 26 weeks' shared parental leave on full pay, a further 13 weeks' paid at the statutory rate, plus 13 weeks' unpaid leave. Their partners received 39 weeks' shared parental leave at the statutory rate, plus 13 weeks' unpaid leave. By the time of the hearing for direct and indirect sex discrimination in the Scottish Employment Tribunal, Network Rail had effectively conceded that its family-friendly policy was indirectly discriminatory. However, the tribunal awarded £28,321 in compensation. Network Rail amended its shared parental leave policy so that both men and women receive only statutory shared parental pay.
This case, unlike the earlier one, compared men's and women’s entitlement to shared parental pay and did not involve comparison with maternity pay.
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.
Q: Is it sex discriminatory to dismiss an employee as the result of an affair with a colleague?
Yes, which may give rise to the following legal issues:
- 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.
- There may be 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 may arise 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, in Coleman v Skyrail Oceanic Ltd (1981) 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.
Q: How can an employer justify or defend a claim of sex discrimination?
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 employers will often have the opportunity to resolve difficulties before a claim is presented in a tribunal.
However, once a claim has been presented, there are some limited explanations that an employer can use to defend a discrimination claim.
Whether an employer can attempt to justify or defend an actual discrimination claim depends upon the precise nature of the claim being brought.
Once the employee has shown that the employer did directly discriminate against them, the employer cannot offer a defence. There is simply no 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 to an indirect discrimination claim (but not to a direct claim). In relation to indirect discrimination, an employer may be able to justify the application of a discriminatory provision, criterion or practice by showing that this requirement is proportionate to the needs of the business. An employer may escape liability if it can justify its actions as being 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 provision, criterion or practice and its discriminatory effect. A 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 discrimination stemming from acts committed by its employees may have an available defence if it can prove it took reasonable steps to prevent its employees from committing harassment. This defence is limited to steps taken before the discriminatory acts occurred (not remedial action after the fact).
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.
For information on third-party harassment, see Will an employer always be liable for sex discrimination when it has failed to prevent harassment on the grounds of sex or sexual harassment of one employee by a third party?
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. The employer 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.
Defences to direct discrimination claims are very rare indeed. However, it is not unlawful to discriminate in relation to certain roles where there is an occupational requirement. This defence is very rarely used and has become even rarer since the enactment of the Equality Act 2010.
The employer would have to show that the specified occupational requirement is:
- a genuine and determining occupational requirement for the role, and
- 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 the particular protected characteristic will be allowed. The employer must be able to 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 How can employers demonstrate that there is a genuine occupational requirement in certain job advertisements? in the Recruitment and selection Q&As.
This is a very important question. In most kinds of civil litigation the claimant has to prove their case. However discrimination claims are different, with the basic principle always been that once an employee has established some initial evidence which suggests that, in the absence of adequate explanation, there could have been discrimination, the employer has to prove that they have 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 How does the burden of proof apply in race discrimination cases? in our Race discrimination Q&As.
Q: Are transsexuals or those contemplating gender reassignment covered by the Equality Act 2010?
Under provisions in the Equality Act 2010 gender reassignment is a separate protected characteristic.
Transsexuals or those contemplating gender reassignment are covered by the provisions. People who are proposing to undergo, are undergoing, or have undergone gender reassignment are protected, including people who:
- start the gender reassignment process, but decide to stop, and
- 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.
It is a common misconception that anyone who cross-dresses is covered by the legislation. They may be protected, but not in all cases. If someone is cross-dressing as part of their transition, they are covered.
The legislation does not provide for someone who cross-dresses and their employer knows they are not transsexual. However, if an employer assumes that an employee is transsexual (even if they are not), then the employee will be covered.
A man wearing make-up and nail varnish applies for a job in a cafe. The interviewer assumes that he is transsexual 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 transsexual.
Communication with employers
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 needs with the employer so the employer 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 is often very time consuming, requiring many appointments, so an employee undergoing gender reassignment 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. Employers should at the very least:
- discuss with the employee how much time they will need to take off, and
- accommodate those needs in so far as they are able.
Note that a person with ‘gender dysphoria’ or ‘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.
The government has published guidance for employers on recruiting and retaining transgender staff.
Q: Are there any future developments expected in the area of sex discrimination?
No specific future developments expected in the area of sex discrimination law, although there has been a number of recent changes, discussed below. The changes are expected to have a knock-on effect on some aspects of sex discrimination law.
Equal pay claims
A number of developments are expected that will affect the area of equal pay, which often overlaps with of sex discrimination (see Are there any future developments expected in the area of equal pay? in the Equal pay Q&As).
Bill of Rights
In March 2014, before the UK referendum on EU membership, the government had already established an independent commission to investigate creating a ‘UK Bill of Rights’. The European Convention on Human Rights is completely separate from the EU, and was incorporated into UK law through the Human Rights Act 1998. If the Bill goes through, the Human Rights Act 1998 will either be severely diluted or abolished. A number of organisations, including the Equality and Human Rights Commission, are very concerned that any new Bill of Rights should preserve the rights and protections currently in the Human Rights Act. Changes in this area may affect aspects of sex discrimination law.
Although the overall numbers of tribunal cases have fallen as a combined result of the introduction of significant fees and Acas early conciliation, interesting cases will continue to emerge providing clarification on the application of the Equality Act 2010.
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