Sex discrimination
On this page:
Summary
Future developments
Practical example
Action point
checklist
Key references
Questions and
answers
Who is
protected?
Who is liable?
Discrimination
after the working relationship has come to an end
Unlawful
discrimination
Direct discrimination
Indirect
discrimination
Victimisation
Dress and
appearance requirements
Genuine
occupational qualifications
Pregnancy and
maternity
Gender reassignment
Sexual harassment
Protection from
Harassment Act 1997
More articles on
this topic from HR & Compliance Centre
6.529
The Sex Discrimination Act 1975 mostly protects employees, but the definition of 'employee' is wider than that contained in other employment legislation. (See 6.531 Who is protected?)
The employer's liability is not just limited to its own actions. It will be liable for discrimination carried out by its employees in the course of employment. (See 6.532 Who is liable?)
Direct discrimination is where a woman is treated less favourably than a man on the grounds of her sex or vice versa, or where a married person or a civil partner is treated less favourably than someone who is not married or a civil partner on grounds of that status. (See 6.535 Direct discrimination)
Indirect discrimination is where a provision, criterion or practice is applied equally to men and women but the effect of the application puts women at a particular disadvantage when compared to men. (See 6.536 Indirect discrimination)
Harassment is where there is unwanted conduct on the ground of the recipient's sex, or unwanted conduct of a sexual nature, which has the purpose or effect of violating the recipient's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her. (See 6.542 Sexual harassment)
Pregnancy or maternity leave discrimination is where a woman is treated less favourably on the ground of her pregnancy or because she is taking maternity leave than if she were not pregnant or exercising her right to maternity leave. (See 6.540 Pregnancy and maternity)
Discrimination may occur when the employer treats unfavourably a person who has alleged discrimination, or threatened to bring, brought or been involved in the bringing of proceedings under the Sex Discrimination Act 1975. (See 6.537 Victimisation)
Discrimination or harassment on the grounds that a person is intending to undergo, is undergoing or has undergone gender reassignment is unlawful. (See 6.541 Gender reassignment)
6.530 Equality Act 2006: The Equality Act 2006, which received Royal Assent on 16 February 2006, will create a public sector duty to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity between men and women. This will come into effect in April 2007.
Recast Directive: The recast Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women comes into force in August 2008. It combines all the European directives covering sex discrimination. The Government is also due to publish a Green Paper on all aspects of discrimination towards the end of 2006.
Judicial review: The Equal Opportunities Commission (EOC) has been successful in its judicial review proceedings against the Government over the implementation of the Equal Treatment Directive through the Employment Equality (Sex Discrimination) Regulations 2005, which came into force on 1 October 2005 and amended the Sex Discrimination Act 1975 (R (on the application of the Equal Opportunities Commission) v Secretary of State for Trade and Industry [2007] EWHC 483 HC).
The High Court accepted the case made by the EOC about the Regulations, including the following:
The definition of harassment in the Regulations is too narrow and does not reflect the broad protection in the Directive, which was intended to ensure that women in the workplace are not subjected to any unwanted conduct related to their sex as opposed to being on the ground of their sex. Thus, the Sex Discrimination Act 1975 should allow claims based on conduct towards another person that has the effect of creating a humiliating or offensive environment towards a woman. For example, the Regulations give no apparent protection to women harassed by clients, even when their employer knows of the harassment and could take steps to prevent it, but fails to do so.
Women's rights during maternity leave are also unclear, with uncertainty as to whether or not they are protected if denied certain rights during additional maternity leave, such as being consulted about organisational changes or receiving an appraisal.
The Regulations require pregnant women to compare their treatment with how they would have been treated if they had not been pregnant, which does not always make sense because of the different needs that women have when pregnant. Thus, there should be no need under the Sex Discrimination Act 1975, section 3A for a comparator in pregnancy and maternity leave claims.
The Secretary of State for Trade for Trade of Industry was given until midday on 16 March to inform the EOC and the Court how the Government plans to remedy the situation.
6.531 The definition of 'employment' under the Sex Discrimination Act 1975, section 82(1) is wider than other definitions of the same term in different employment legislation and extends to employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, so:
the self-employed, provided they work under a contract personally to execute work or labour, will be protected by the Act; and
contract workers, who are employed by one person who supplies their services under a contract with another person, are protected from discrimination under the Act.
Special cases: parties to an illegal contract will not usually be able to bring proceedings on the contract as a matter of public policy. However, the courts have held that employees can still make a claim under the Sex Discrimination Act 1975 as such is not founded upon the contract of employment but upon the statutory protection.
The Court of Appeal held in Hall v Woolston Hall Leisure Ltd [2000] IRLR 578 CA that the employee could proceed with her sex discrimination claim against her employer following her dismissal. This was despite the fact that she knew that her employer had been defrauding the Inland Revenue by not paying tax on her behalf and therefore that she would have been unable to take other proceedings under that contract.
There are special provisions providing protection for people undergoing or seeking vocational training, police officers, prison officers, crown employees, holders of certain offices and posts, barristers, members of the armed forces and Ministers of Religion.
The Sex Discrimination Act 1975 does not apply to employees who do their work wholly outside Great Britain unless the employer has a place of business at an establishment in Great Britain, the employee's work is for the purposes of the business carried on at that establishment, and the employee is ordinarily resident in Great Britain at the time when he applies for or is offered the employment or at any time during the course of the employment.
6.532 The following may be liable for acts of discrimination:
Employers, in relation to job applicants, employees, ex-employees (in some cases), where:
− the employer discriminates against a job applicant, or an employee in its employment;
− the employer's employees discriminate against a worker during the course of their employment, unless the defence of having taken steps to prevent discrimination applies; or
− the employer's agent discriminates, unless the defence applies.
Employees who discriminate during the course of their employment, who will be personally liable even if the employer has a defence.
Principals (ie those who make work available for individuals employed by someone else) when:
− they discriminate against contract workers; or
− the principal's agent discriminates.
A person who knowingly aids another person to do an unlawful act of discrimination.
Employers: Employers are liable under the Sex Discrimination Act 1975 for sex discrimination in recruitment, terms and benefits, harassment and other detrimental treatment during employment, dismissal and some discrimination after employment. The act of discrimination may be:
done by the employer itself;
done by its employees in the course of their employment, whether or not the act is done with the employer's knowledge or approval; or
done by an agent of the employer with the express or implied authority of the employer (whether given before or after the act).
Employers may also be liable for discrimination carried out by their employees during the course of their employment, or their agents, unless they can show that they took such steps as were reasonably practicable to prevent them discriminating.
Employers' liabilities for employees' acts: An employer will be liable for discrimination by employees only if it is carried out in the course of employment. 'Course of employment' has been interpreted widely in race and sex discrimination cases. In Jones v Tower Boot Co Ltd [1997] IRLR 168 CA, a racial harassment case, the Court of Appeal held that 'in the course of employment' could cover even acts of torture to which workers had subjected a colleague in the workplace. The term should be interpreted in the broad sense in which it is employed in everyday speech. It may cover discrimination that occurs outside work provided that there is a close link to the work, eg a work outing, a Christmas party or a work trip abroad.
In Chief Constable of the Lincolnshire Police v Stubbs and others [1999] IRLR 81 EAT the Employment Appeal Tribunal (EAT) upheld a finding that two incidents that occurred in a pub after work occurred in the course of employment. The tribunal had held that the incidents were connected to work and the workplace; they would not have happened but for the claimant's work; and work-related social functions are an extension of employment. The EAT said that when there is a social gathering of work colleagues it is appropriate for a tribunal to consider whether or not the circumstances show that what was occurring was an extension of their employment. Whether a person is or is not on duty and whether or not the conduct occurred on the employer's premises are two of the factors that will need to be considered by the tribunal, but are not conclusive. Each situation is a question of fact for the tribunal.
Where there is discrimination by a person who is not an employee or an agent, employers will be liable under the Sex Discrimination Act 1975 for failing to prevent such discrimination only if their reason for not taking preventative action was on the grounds of the employee's sex or because the individual had previously raised an issue of sex discrimination (Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] IRLR 512 HL, which overruled the EAT decision of Burton and Rhule v De Vere Hotels [1996] IRLR 596 EAT).
'Reasonable practicable steps' defence: An employer will have a defence to an act of discrimination committed by one of its employees if it can prove that it took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his or her employment acts of that description. Guidance from sex and race discrimination cases suggests that having an appropriate policy covering the type of behaviour, such as an equal opportunities or dignity at work policy, will be an essential part of proving a reasonable steps defence but will be insufficient in itself. The policy must be properly implemented, which will include making employees aware of the policy, and is likely to require some form of training (see 6.1 Avoiding discrimination). If a particular risk has been identified, eg from a particular employee, some additional steps may be required if the employer is to be able to establish a reasonable steps defence to any act of discrimination by that employee: Canniffe v East Riding of Yorkshire Council [2000] IRLR 555 EAT.
Liability for and of agents: An employer may also be liable for discrimination carried out by its agents, such as an employment agency through whom members of staff are appointed. In this context, the employer is referred to as 'the principal', which has a different meaning to a person who engages the services of a worker who is employed by someone else (see Principals below). In Lana v Positive Action Training in Housing (London) Ltd [2001] IRLR 501 EAT the respondent placed the claimant with a company, which terminated the arrangement soon after the claimant said that she was pregnant. The respondent then terminated its training contract as it did not have any work for the claimant. The EAT held that the respondent, which had agreed to provide the claimant with work experience, and contracted with another company (its agent) to provide her with a work experience placement, would be liable itself if its agent had terminated the work experience placement because the trainee was pregnant. The agent had the authority to terminate the engagement of the trainee and, if that were done in circumstances in which it constituted discrimination, the principal would be liable. The agent would also be liable.
Personal liability of employees: An employee will be personally liable for acts of discrimination carried out against other workers during the course of his or her employment: Yeboah v Crofton [2002] IRLR 634 CA. Thus, an employee may be named as a respondent in a discrimination claim and be ordered to pay compensation even if the employer can show that it satisfied the reasonable steps defence. In Gilbank v Miles [2006] IRLR 538 CA an award of £25,000 was made personally against a manager (who was a director and the main shareholder of the company) after she discriminated against a pregnant employee.
Principals: A principal is defined as someone who engages the services of a worker employed by someone else under a contract with the worker's employer. Principals are liable under the Sex Discrimination Act 1975 for sex discrimination in whether to allow the worker to do, or continue to do, the work, in the terms on which the worker is allowed to do the work, in relation to access to benefits, or in relation to any other detrimental treatment, including some discrimination after the working relationship has come to an end. There does not have to be a direct contractual relationship between the principal and the employer of the contract worker (Abbey Life Assurance Co Ltd v Tansell [2000] IRLR 387 CA). The act of discrimination may be:
done by the principal itself;
done by the principal's employees in the course of their employment, whether or not the acts are done with the principal's knowledge or approval; or
done by an agent of the principal with the express or implied authority of the principal (whether given before or after the act).
The same approach to 'course of employment', the 'reasonable steps' defence to acts done by the principal's employees and liability for the acts of an agent will apply as described above. In addition, the individual will be protected from discrimination by his or her employer.
Employees, agents and others who 'knowingly aid' acts of unlawful discrimination: Anyone who knowingly aids someone to do an act of unlawful discrimination will also be treated as doing the unlawful act. In Anyanwu and another v South Bank Students' Union and South Bank University [2001] IRLR 305 HL the claimants, two black students who were employed by the student union, claimed that the university aided their dismissal by the student union when the university expelled them and barred them from the union premises. The House of Lords held that a person aids another if the person helps or assists, or cooperates or collaborates with him or her. It does not matter who the 'prime mover' is. Aiding must be done knowingly. It requires more than a general attitude of helpfulness or cooperation; it must be shown that another is aided to do the unlawful act in question: Hallam and another v Cheltenham Borough Council and others [2001] IRLR 312 HL. In Gilbank v Miles [2006] IRLR 538 CA an award of £25,000 was made personally against a manager (who was a director and the main shareholder of the company) after she discriminated against a pregnant employee.
Discrimination after the working relationship has come to an end
6.533 An act of discrimination committed after the working relationship has come to an end will be unlawful if it would have been unlawful during the course of the working relationship, where the act of discrimination consists of:
subjecting someone to a detriment; or
subjecting him or her to harassment; and
the discrimination or harassment arises out of and is closely connected to that relationship.
Therefore, where there is discrimination or harassment during an appeal against dismissal this will be unlawful even if the employee has already been dismissed. Where an employer refuses to give an ex-employee a reference because she alleged discrimination or brought a claim, this would be unlawful victimisation.
Unlawful discrimination
6.534 The Sex Discrimination Act 1975, section 6 prohibits direct or indirect sex discrimination (and direct or indirect discrimination relating to a person's status as a married person or civil partner) and victimisation:
in the arrangements made for the purposes of determining who should be offered employment;
in the terms on which employment is offered;
by refusing or deliberately omitting to offer employment;
in the way an employee is afforded access to opportunities for promotion, transfer or training or to any other benefits, facilities or services;
by refusing or deliberately omitting to afford an employee access to those opportunities, benefits, facilities or services;
by dismissing an employee (which includes constructive dismissal); and
by subjecting an employee to any other detriment.
Section 6 also prohibits harassment against employees or applicants for employment.
A claimant can suffer a detriment even if he or she was unaware of the conduct complained of at the time: Garry v London Borough of Ealing [2001] IRLR 681 CA.
Being subjected to a 'detriment' has been interpreted as meaning being put at a disadvantage: Jeremiah v Ministry of Defence [1979] IRLR 436 CA. Some physical or economic consequence is not necessary: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL. Hurt feelings may be enough for there to be detriment, at least provided the victim's view of the treatment is not unreasonable or unjustified.
The House of Lords in Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] IRLR 512 HL confirmed that discrimination on grounds of sexual orientation does not fall within the scope of the Sex Discrimination Act 1975. However, there is now specific protection under the Employment Equality (Sexual Orientation) Regulations 2003: see 6.634 Sexual orientation discrimination.
6.535 Under the Sex Discrimination Act 1975 direct sex discrimination occurs where a woman is treated less favourably than a man because of her sex. (This applies equally to the treatment of men so long as that treatment is gender based.)
Direct discrimination against married persons and civil partners occurs where a married person or a civil partner is treated less favourably than an unmarried person or someone who is not a civil partner because of his or her marital status or status as a civil partner. Discrimination against a single person on the grounds of his or her marital status is not unlawful.
The test for direct sex discrimination has often been split into two questions: was the claimant treated less favourably than an actual or hypothetical comparator and, if so, was the less favourable treatment on the ground of sex. The House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HLhas suggested that, although this may be a helpful approach in some cases, in others the less favourable treatment issue cannot be resolved without deciding on the reason for the treatment. This is most likely to be the case where there is no actual comparator in the same or not materially different relevant circumstances. Where a hypothetical comparator has to be relied on, determining the reason for the treatment may determine how a hypothetical comparator would have been treated. The House of Lords did not, however, consider the new burden of proof provision in the Sex Discrimination Act 1975, section 63A (see On the grounds of sex).
The key elements in a direct marriage or civil partnership discrimination claim are that the married person or civil partner is treated less favourably than an unmarried person or someone who is not a civil partner and that the difference in treatment is on the ground of the person's married status or status as a civil partner.
Less favourable treatment: Complainants alleging direct discrimination have to compare themselves with either an actual or a hypothetical comparator to show less favourable treatment. A woman would have to show that she has been less favourably treated than a man in similar circumstances either was or would have been treated. A married person or a civil partner would have to show that he or she has been less favourably treated than an unmarried person or someone who is not a civil partner in similar circumstances either was or would have been treated.
Where there is no actual comparator in similar circumstances a tribunal may need to identify a hypothetical comparator and to identify the characteristics of that hypothetical comparator. A tribunal can draw an inference of how a hypothetical comparator would have been treated from evidence of how the employer treated actual non-identical, but not wholly dissimilar cases: Chief Constable of West Yorkshire v Vento [2001] IRLR 124 EAT. The hypothetical comparator does not have to be a clone of the claimant in every respect: Madden v Preferred Technical Group Cha Ltd and another [2005] IRLR 46 CA.
On the grounds of sex: The second hurdle in a claim of direct sex discrimination is to show that the reason the treatment was less favourable was because of the woman's sex. This does not have to have been the sole reason but it must have been an important or substantial reason. Less favourable treatment on other grounds (conduct, performance, etc) is not unlawful discrimination.
In James v Eastleigh Borough Council [1990] IRLR 288 HL the council offered free swimming to persons over pensionable age (60 for women and 65 for men). The House of Lords held that the question to be considered when deciding whether treatment was on the grounds of sex was whether Mr James would have received the same treatment from the council but for his sex. The House of Lords held that, but for his sex, a man of 61 would have been entitled to the free facilities, and therefore Mr James succeeded.
If the woman shows that there was a difference in treatment between her and an actual or hypothetical male comparator, and the employer fails to provide an adequate non sex-based explanation for that difference in treatment, then the tribunal is required to uphold the complaint. In Igen Ltd (formerly Leeds Careers Guidance) and others v Wong and other cases [2005] IRLR 258 CA the Court of Appeal held that the respondent must prove, on the balance of probabilities, that its treatment of the claimant was 'in no sense whatsoever on the ground of sex'. The respondent must provide an adequate explanation to prove that sex was not a ground for the treatment and, since the respondent would normally be in possession of the facts necessary to provide an explanation, the tribunal would normally expect cogent evidence to discharge that burden. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or any Code of Practice (see 6.224 Hearings). In Madarassy v Nomura International plc [2007] IRLR 246 CA the Court of Appeal confirmed the two-step approach set out in Igen, saying that, as the guidance was sufficiently clear, there was no need for any further guidance on the burden of proof.
On the grounds of fulfilment of the condition of being married or a civil partner: The second hurdle in a claim of direct discrimination against married persons or civil partners is to show that the reason the treatment was less favourable was on the ground of the claimant's fulfilment of the condition of being married or a civil partner. As with sex discrimination, this does not have to be the sole reason but must be an important or substantial reason.
If the claimant shows that there was a difference in treatment between him or her and an actual or hypothetical comparator who does not fulfil that condition, and the employer fails to provide an adequate non-marriage-based or non-civil-partnership-based explanation for that difference in treatment, then the tribunal is required to uphold the complaint.
The Employment Appeal Tribunal in Chief Constable of the Bedfordshire Constabulary v Graham [2002] IRLR 239 EAT held that there was direct marriage discrimination when a female inspector's appointment was rescinded because she was married to the divisional commander of the same division and she would not be a compellable witness against her spouse in any criminal proceedings. The decision to rescind the appointment was based on the fact of marriage and, therefore, was direct marriage discrimination.
Justification: In direct discrimination claims an employer is not able to defend the claim on the basis of justification; this is available in relation only to indirect discrimination.
Positive discrimination: Positive discrimination is generally unlawful under the Sex Discrimination Act 1975. However, there are some narrowly defined exceptions, for example in relation to charities (section 43), training (section 47 and section 48), recruitment campaigns (section 48) and elective bodies (section 49). The Equal Treatment Directive allows for measures intended to promote equal opportunity for men and women particularly by removing existing inequalities. However, this does not permit national rules that provide in cases where all else is equal that a female candidate should be preferred for the appointment or promotion.
6.536 Following amendments made by the Employment Equality (Sex Discrimination) Regulations 2005, which came into force on 1 October 2005, indirect sex discrimination in the employment field is defined as follows.
A person discriminates against a woman if the person applies to her a provision, criterion or practice that is applied equally or would be applied equally to a man but:
which puts or would put women at a particular disadvantage when compared with men; and
which puts her at that disadvantage; and
which the person cannot show to be a proportionate means of achieving a legitimate aim.
The Employment Equality (Sex Discrimination) Regulations 2005 inserted a new definition of indirect discrimination against married people in the employment field. This has subsequently been replaced with effect from 5 December 2005 with a provision dealing with indirect discrimination against married persons and civil partners.
A person discriminates against a married person or a civil partner if the person applies to that person a provision, criterion or practice that is applied equally or would be applied equally to someone who is not married or a civil partner, but:
which puts or would put people fulfilling the condition of being married or a civil partner at a particular disadvantage when compared with people not fulfilling that condition; and
which puts the claimant at that disadvantage; and
which the person cannot show to be a proportionate means of achieving a legitimate aim.
Prior to 12 October 2001 the definition of indirect discrimination included the wording 'requirement or condition', which is referred to in some of the case examples that follow.
The test for disproportionate impact was amended in 2001 and again on 1 October 2005. When considering cases that relate to events prior to 1 October 2005, regard should be had for the fact that the test was different and, arguably, narrower than the current test.
This part of the definition now requires the claimant to show that the application of the provision, criterion or practice puts or would put women at a particular disadvantage when compared with men who are in the same circumstances. The DTI guidance on the changes to the Sex Discrimination Act 1975 suggests that statistics can be helpful in ascertaining relative disadvantage, but they are not essential.
The choice of the appropriate pool is a matter for the tribunal but it should be sufficiently wide to include all those who might be affected by the provision, criterion or practice.
The Court of Appeal in Jones v University of Manchester [1993] IRLR 218 CA held that the appropriate pool for comparison in a recruitment case was all those people who could comply with the other selection criteria, apart from the requirement at issue.
London Underground Ltd v Edwards (No.2) [1998] IRLR 364 CA concerned changes to the rostering system for train drivers on the London Underground. All the male drivers (over 2000 in total) were able to comply with the new rosters, as were 20 of the 21 female drivers. The only exception was Ms Edwards, a single parent, who found that she could no longer reconcile work with her childcare responsibilities.
The Court of Appeal upheld the tribunal's decision that the new rosters indirectly discriminated against women, even though 95% of the female drivers were able to work them, because all the men could comply.
Where the number of employees in the relevant pool was as small as in the instant case, a tribunal was entitled to draw on the well-known fact that females are more likely to be single parents, and that therefore a considerably smaller proportion of women would have been able to work the new rules, ie 95% as against 100% of the men. This case shows that a tribunal may use its common sense and experience in answering the proportionality question and in defining the pool.
In Chief Constable of Avon & Somerset Constabulary v Chew EAT/503/00 the Employment Appeal Tribunal (EAT) upheld a tribunal's finding that a requirement to comply with shift rosters in order to be entitled to work part time was indirectly discriminatory. The tribunal considered the appropriate pool to be all officers to whom the condition was applied. The tribunal identified at least 11 officers in this pool who could not comply with this condition. This produced a difference of 2.26% between the proportions of men and women who could comply. Although this difference did not, on the face of it, amount to a sufficiently disparate effect, the EAT held that the tribunal had been correct to adopt a flexible approach and have regard to other factors in concluding that the condition had a disparate adverse impact on women, ie the fact that the statistics indicated the bare minimum of officers who could not comply and that an inherently likely effect of the condition was that it would disadvantage officers with childcare responsibilities, and that the overwhelming burden of such responsibilities falls on women.
In British Airways Plc v Starmer [2005] IRLR 862 EAT the EAT held that British Airway's refusal to allow the pilot claimant to halve her working hours, as opposed to working 75% of her hours, was indirect sex discrimination. The EAT agreed that a 3.66% difference in men and women who could work full time constituted a disproportionate impact, saying that the tribunal was entitled to take into account, where appropriate, a more general picture than is specifically displayed by statistics put in evidence. The EAT did not accept British Airway's justification that it would be unsafe if the claimant flew less than 75% of full-time hours, this being based on a generalised standard requiring a minimum number of flying hours. Although British Airways appealed, it later withdrew the appeal, accepting that the claimant had been able to maintain high standards of performance, even though she had less flying time.
In Lockwood v Crawley Warren Group Ltd EAT/1176/99 the EAT held that the refusal of a woman's request to work from home in order to resolve childcare difficulties could conceptually constitute indirect sex discrimination and remitted the case to the employment tribunal for full consideration.
The Court of Appeal in Coker and Osamor v Lord Chancellor and Lord Chancellor's Department [2002] IRLR 80 CA held that there was no indirect sex or race discrimination when the Lord Chancellor appointed a special adviser with the requirement that the successful candidate be personally known to him. The employment tribunal had held that this requirement indirectly discriminated against women and those from racial minorities because, in a pool of the Lord Chancellor's acquaintances, there were considerably more men than women and white people than those from ethnic minorities. The Court of Appeal held that where a requirement excludes almost the entirety of the pool it cannot constitute indirect discrimination within the statutes. It is arguable, based on this case, that making an appointment from within a circle of family, friends and personal acquaintances may not constitute indirect discrimination. However, the employment tribunal in Elliott v Somerset County Council [2002] ET/1400922/02 rejected the council's argument that managers at a leisure centre simply chose staff from applicants who were known to them and that this policy was not improper or discriminatory and had been approved by the Court of Appeal in Coker and Osamor. The tribunal said that to require swimming instructors to be known to the existing team would be most improper and contrary to the council's equal opportunities policy, and that the requirement clearly could not be necessary for the proper discharge of the duties of a swimming instructor.
The test for whether the claimant is put at a disadvantage or not is an objective one. There must be actual disadvantage to the individual at the time the discriminatory provision, criterion or practice was being applied. It is not enough to show that the provision, criterion or practice is discriminatory in a general sense - it must disadvantage the individual claimant.
An employer may be able to justify the discriminatory result by showing that application of the provision, criterion or practice is a proportionate means of achieving a legitimate aim. The test prior to 1 October 2005 was that the employer had to show that the application of the provision, criterion or practice was justifiable irrespective of the sex of the person to whom it was applied. It may be that the change in wording does not signify any real onus on the employer. The burden is on the employer to prove the defence on objective grounds. The courts will carry out a balancing exercise between the employer's reasonable need to impose the provision, criterion or practice and the discriminatory effect of the provision, criterion or practice: Hampson v Department of Education and Science [1989] IRLR 69 CA. The more discriminatory the provision, criterion or practice, the more difficult it will be for the employer to show that it was justifiable. Cost alone will not justify the imposition of a discriminatory provision, criterion or practice, but may be one of the factors taken into account in the balancing exercise: Cross and others v British Airways plc [2005] IRLR 423 EAT.
In L B Steel v (1) The Union of Post Office Workers and (2) The General Post Office [1977] IRLR 288 EAT the EAT held that it is necessary to distinguish between a discriminatory requirement or condition, the imposition of which is necessary, and one that is imposed merely as a matter of convenience. Consideration should be given as to whether the aim could have been achieved in a non-discriminatory manner. In conclusion, it is necessary to weigh up the needs of the enterprise against the discriminatory effects of the requirement or condition.
In Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317 ECJ the European Court of Justice held that in order to justify a discriminatory objective, an employer must show that 'the means chosen for achieving that objective correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objective in question and are necessary to that end'.
In Whiffen v Milham Ford Girls' School [2001] IRLR 468 CA the Court of Appeal held that a condition in a redundancy policy under which employees on fixed-term contracts were automatically selected for redundancy before employees on permanent contracts, and which had a disparate adverse impact on women, was not justified.
In Manning v Wick Hill Limited [2002] ET/2300178/02, an employment tribunal held that an IT company was not justified in requiring a product manager to work full time and fully flexibly. Mrs Manning may have been required to work outside office hours one day a month or so and she was prepared to do this given enough notice. Given the kind of work she did, it was not a problem for Wick Hill to give her this notice. Wick Hill did not thoroughly investigate the extent of Mrs Manning's flexibility. The tribunal commented that, if a respondent is to establish a 'real need on the part of the undertaking', it must do sufficient research and analysis in order to reach a sound conclusion. Had Wick Hill investigated Mrs Manning's availability more thoroughly, it would have discovered that some of its fears were not founded. Alternatively, the tribunal suggested, it could have allowed her to work reduced hours for a trial period, after which it would have been in a strong position to challenge Mrs Manning informally or through the disciplinary process if her new way of working was proving to be economically damaging for the company.
A requirement for a bar person to work until 6 pm rather than 5 pm was not justified in Smith v Penlan Club [2002] ET/1602995/01. The respondent argued that the changes were desirable against a background of cash shortages, which it said necessitated adjusted working hours to minimise access to tills by more than one person on any one shift. The tribunal found that the steward and club secretary had failed to look properly at a range of alternatives that might reasonably have accommodated Mrs Smith's difficulties in meeting her responsibilities to her son (a diabetic requiring regular medication and a strict dietary regime).
However, a tribunal found in Tarrant v South East Regional Probation Training Consortium [2002] ET/2305328/01 that refusing a job-share for the position of programme development manager with a Regional Probation Training Consortium was justified where no job-share partner was available, and that there was no obligation on the employer to advertise specifically for a job-share partner where it considered the chances of finding someone suitable to be remote.
6.537 Under the Sex Discrimination Act 1975, section 4 the employee has the right not to be treated less favourably by reason of the fact that he or she has committed a 'protected act', that is:
He or she has brought proceedings against the discriminator or any other person under the Sex Discrimination Act 1975 or Equal Pay Act 1970. This means any proceedings, so may include court proceedings against, say, a friend of the employer.
He or she has given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under the Sex Discrimination Act 1975 or Equal Pay Act 1970.
He or she has otherwise done anything under or by reference to the Sex Discrimination Act 1975 or Equal Pay Act 1970 in relation to the discriminator or any other person. This is a wider phrase and could include encouraging employees to make a claim.
He or she has alleged that the discriminator or any other person has committed an act which (whether or not the allegation specifically so states) would amount to a contravention of the Sex Discrimination Act 1975 or give rise to a claim under the Equal Pay Act 1970. Protection from victimisation may be available even if the allegation turns out to be wrong, provided that it was made in good faith and the asserted facts are, if true, capable of amounting to an unlawful act under one of the above Acts.
In Bruce v Addleshaw Booth & Co [2004] All ER (D) 218 (May) EAT the Employment Appeal Tribunal (EAT) confirmed that claims of victimisation are not freestanding and can be brought only if a claimant can show that he or she has been subjected to discrimination of a type rendered unlawful by the relevant discrimination legislation, for example in relation to recruitment or being subjected to a detriment in employment (which includes acts after employment has ended where the acts arise out of, and are closely connected to, the previous relationship).
In Waters v Commissioner of Police of the Metropolis [1997] IRLR 589 CA, the Court of Appeal held that a complaint that a fellow officer had sexually assaulted the employee outside the course of his employment was not capable of giving her an entitlement to claim victimisation. The employer could not have been held liable for the assault because it was not committed by its employee in the course of employment.
If the employee is treated less favourably on the grounds that he or she is believed by the employer to be intending to do any of the above activities that too will amount to victimisation.
The claim of victimisation will in most cases therefore be linked with another earlier sex discrimination claim, for example where the employee brings a claim for equal pay and then later is demoted as a result.
It will not matter whether the original underlying claim has been successful. In a complaint of victimisation the sex discrimination is not in issue, it is the conduct of the employer in consequence of the employee bringing a claim or assisting another to bring a claim.
Knowledge of the protected act by those committing the alleged act of victimisation is a precondition to a finding of victimisation: Scott v London Borough of Hillingdon [2001] EWCA Civ 2005 CA.
The act of victimisation can be consciously or unconsciously by reason of the protected act: Nagarajan v London Regional Transport [1999] IRLR 572 HL.
To constitute victimisation, the act of victimisation must be 'by reason that' the claimant has done the protected act. In Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 HL, the House of Lords held that the refusal to supply a reference to support promotion applications whilst race discrimination proceedings were in progress was not victimisation. The reference was not withheld 'by reason that' the claimant had brought discrimination proceedings but rather because the employer temporarily needed to preserve its position in the outstanding proceedings. It is difficult to discern any clear statement of principle commanding majority support as to how 'by reason that' should generally be applied. However, the House of Lords rejected the application of the test of whether 'but for' the protected act the respondent would have done the alleged act of victimisation, in cases of victimisation.
The EAT in Commissioners of Inland Revenue and another v Morgan [2002] IRLR 776 EAT read Khan as creating a specific exception to victimisation even where the 'but for' test is satisfied, where the act complained of is an honest and reasonable step in the proper conduct of the respondent's defence.
The Court of Appeal in St Helens Metropolitan Borough Council v Derbyshire and Others [2005] IRLR 801 CA has interpreted Khan as meaning that, once proceedings have been commenced, it is open to an employer, acting honestly and reasonably, to take steps to protect its position in that litigation without infringing the victimisation provisions. If an employer conducts itself in this way, it is doing so only to protect its position in the discrimination proceedings and not because the claimant has brought those proceedings against the employer.
Dress and appearance requirements
6.538 Employers that apply different clothing or appearance rules to men and women leave themselves open to claims of sex discrimination. However, the courts have been willing to accept that employers can have different dress codes for men and women where these apply to conventional standards of dress.
In M Schmidt v Austicks Bookshops Ltd [1977] IRLR 360 EAT, the Employment Appeal Tribunal (EAT) held that there was no less favourable treatment of women in a rule preventing female employees from wearing trousers when working in sight of the public. In Smith v Safeway plc [1996] IRLR 456 CA, the Court of Appeal approved what it considered to be the principles in Schmidt. Mr Smith was a delicatessen assistant in a supermarket. Both male and female food handlers had to wear hats and both sexes were prohibited from having 'unconventional' hairstyles. However, the rules on hair length were different for men and women in that women could have long hair if they clipped it back but men could not let their hair grow below shirt-collar length.
Smith was dismissed when he refused to have his hair cut. The Court of Appeal held that the prohibition of ponytails for male employees did not constitute less favourable treatment because the same standard of conventional appearance at work was rigorously applied to both male and female employees.
It stated that a code that applies a conventional standard of appearance is not of itself discriminatory. Whilst one of the aims of the sex discrimination legislation is to prevent unequal treatment of the sexes arising from conventional attitudes, this does not render discriminatory an appearance code that applies a common standard as to what is conventional.
In assessing whether the requirement would be discriminatory the employer should ensure that dress or appearance rules are imposed to a similarly restrictive degree on men and women.
Employers should not assume, because of M Schmidt v Austicks Bookshops Ltd [1977] IRLR 360 EAT and Smith v Safeway plc [1996] IRLR 456 CA, that it will not be unlawful sex discrimination to prevent a woman wearing trousers or a man having long hair. Standards of conventional dress change over time and may vary according to the context. Trousers are now conventional business dress for many women. There have been a number of employment tribunal cases that have held that instructions to women not to wear trousers have constituted unlawful sex discrimination.
In Stoke-on-Trent Community Transport v Cresswell EAT/359/93 the EAT found that a female employee dismissed for wearing trousers in breach of the respondent's dress code was directly discriminated against in circumstances where the employer imposed no equivalent dress or appearance rule on male employees.
In Pell v Wagstaff and Wheatley Hotel [2000] ET/2801882/99, a tribunal held that Mr Pell had been subjected to unlawful sex discrimination when he was refused a job as barman at the Wheatley Hotel unless he cut off his ponytail. The tribunal held that Mr Wagstaff's requirements of men and women were not even handed. Women could have long hair but would need to grip or tie it back. Mr Pell was prepared to do whatever might have been necessary to keep his hair tidy and neat but that was not good enough. The tribunal concluded that there was a more onerous requirement upon men that resulted in sex discrimination.
Genuine occupational qualifications
6.539 The Sex Discrimination Act 1975 recognises that the effective performance of certain jobs is dependent upon the job-holder being of the appropriate sex. It is not positive discrimination but permissible discrimination. An employer may discriminate under the Act only where being a member of a particular sex is a genuine occupational qualification (GOQ). The Sex Discrimination Act 1975, section 7(2) sets out an exhaustive list of GOQs. In summary these are:
Where the essential nature of the job calls for a man for reasons of physiology or, in dramatic performances or other entertainment, for reasons of authenticity, so that the essential nature of the job would be materially different if carried out by a woman.
Where the job needs to be held by a man to preserve decency and privacy because it is likely to involve contact with men in circumstances where they might reasonably object to it being carried out by a woman; or men might reasonably object to the presence of a woman because they are in a state of undress or using sanitary facilities.
Where the job is likely to involve its holder doing work or living in a private home and needs to be held by a man because objection might reasonably be taken to allowing a woman the degree of physical or social contact with a person living in the home or knowledge of the intimate details of such a person's life which is likely because of the nature of the job.
Where the nature or location of the establishment makes it impracticable for the holder of the job to live elsewhere other than in the premises provided by the employer, which cater only for men, and the employer could not reasonably be expected to provide separate facilities for women.
Where the nature of the establishment requires the job to be held by a man because it is or is part of a hospital, prison or other establishment for persons requiring special care, supervision or attention and those persons are all men and it is reasonable having regard to the essential nature of the establishment that the job should not be held by a woman.
Where the holder of the job provides individuals with personal services promoting their welfare, etc and those services can most effectively be provided by a man.
Where the job needs to be held by a man because it involves the performance of duties outside the
Where the job is one of two to be held by a married couple, by a couple who are civil partners of each other, or by a married couple or a couple who are civil partners of each other.
All these grounds can apply equally to make being a woman a GOQ.
Where under the Sex Discrimination Act 1975, section 7(4) the employer already has sufficient number of male employees capable of carrying out duties within a post which becomes vacant, and whom it is reasonable to employ on those duties, the GOQ defence is not available.
An employment tribunal found in Smith v Reliance Secure Task Management Ltd t/a Reliance Monitoring Services [2002] ET/1400993/02 that no genuine occupational qualification applied to the recruitment of someone to tag offenders. Reliance argued that the job needed to be held by a woman to preserve decency or privacy because it was likely to involve physical contact with women in circumstances where they might reasonably object to its being carried out by a man. The tribunal noted that tagging did not require the removal of any clothing and that any physical contact would be limited to just above the ankle or wrist. It likened it to physical contact required in a shoe shop or jewellers. Alternatively, the tribunal considered that the number of females already employed in the job was sufficient to meet the employer's likely requirements without undue inconvenience.
6.540 From 1 October 2005, the Sex Discrimination Act 1975 has contained express provisions prohibiting discrimination on the grounds of pregnancy and maternity leave. These make it unlawful for an employer to treat a woman during a protected period less favourably on the ground of her pregnancy than she would have been treated had she not been pregnant. The requirement for a comparator under section 3A - ie the same woman but not pregnant or on maternity leave - was held to be a breach of European law in R (on the application of the Equal Opportunities Commission) v Secretary of State for Trade and Industry [2007] EWHC 483 HC. The Sex Discrimination Act 1975, section 3A must now be amended by the Government.
The protected period begins when a woman becomes pregnant and ends at the end of her statutory maternity leave or, if she is not entitled to ordinary maternity leave, at the end of two weeks after the end of the pregnancy. The new provisions also make it unlawful for an employer to treat a woman less favourably on the ground that she is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave. Where a person's treatment of a woman is on grounds of illness suffered by the woman as a consequence of pregnancy, that treatment is to be taken to be on the ground of pregnancy.
Provisions that took effect from 1 October 2005 also make it clear that it is not unlawful to deprive a woman who is on ordinary maternity leave of any benefit from the terms and conditions of her employment relating to remuneration (other than maternity-related remuneration), or to deprive a woman who is on additional maternity leave of any benefit from the terms and conditions of her employment other than maternity-related remuneration, the benefit of her employer's implied obligation to her of trust and confidence, and any benefit of terms and conditions in respect of notice of termination, redundancy compensation, disciplinary or grievance procedures or membership of a pension scheme. However, the High Court in R (on the application of the Equal Opportunities Commission) v Secretary of State for Trade and Industry [2007] EWHC 483 HC held that the exception relating to continuing terms and conditions of employment during additional maternity leave should be amended to be consistent with the European Court of Justice (ECJ) decision in Land Brandenburg v Sass [2005] IRLR 147 ECJ. This provided that a woman who is treated unfavourably because of absence on maternity leave suffers discrimination on the ground of her pregnancy and that leave. Thus, although the position will not be entirely clear until the Government has amended the Sex Discrimination Act 1975 in accordance with the High Court decision, service for the provision of contractual rights at least should continue during additional maternity leave.
There are also special measures that relate to pregnant employees in the Employment Rights Act 1996 and the Maternity and Parental Leave Regulations 1999. They include the right not to be unfairly dismissed or suffer a detriment on the grounds of pregnancy or maternity.
Prior to 1 October 2005 the Sex Discrimination Act 1975 contained no specific provisions relating to pregnant women or those absent from work on maternity leave. Despite this, discrimination on the grounds of pregnancy was an area that developed into a special branch of sex discrimination law. This was principally caused by the adoption of EU legislation such as the Equal Treatment Directive and Pregnant Workers Directive.
Dekker v Stichting Vormingscentrum Voor Jonge Volwassen (VJV-Centrum) Plus [1991] IRLR 27 ECJ established the principle of direct discrimination on the grounds of pregnancy when the defendant refused to employ Ms Dekker on the grounds that she was pregnant. The ECJ held that in determining whether there had been direct discrimination in breach of the Equal Treatment Directive it was necessary to ask whether the reason for refusal was one that applied without distinction to both sexes. Since only female candidates can be refused employment on grounds of pregnancy such a refusal was direct discrimination on the grounds of sex.
The usual requirement is that the employee identify a male comparator, hypothetical or real, that the employer has treated or would treat differently in the same circumstances, but an exception is made in pregnancy cases.
The principle was established in Webb v EMO Air Cargo (UK) Ltd [1994] IRLR 482 ECJ. The House of Lords referred the issue to the ECJ as it was accepted that it had a duty to attempt to construe the Sex Discrimination Act 1975 in accordance with European law.
The facts of the case concerned the dismissal of a pregnant woman who had been employed on a permanent basis, although initially to cover another employee's maternity absence, but who would herself be on maternity leave at the time and so unable to carry out the fundamental condition of her job.
The ECJ held that the dismissal of a pregnant woman could not be justified. The protection afforded to a woman during pregnancy and after childbirth cannot be dependent upon whether her presence during maternity leave is essential to the proper functioning of the employer's business.
In addition the Pregnant Workers Directive provides that women shall not be dismissed during the period running from the beginning of the pregnancy to the end of their statutory maternity leave, save in exceptional circumstances not connected with their condition.
In Webb v EMO Air Cargo (UK) Ltd (No.2) [1995] IRLR 645 HL the House of Lords held that the Sex Discrimination Act 1975 could be construed in accordance with European law and that it is not necessary for an employee in those circumstances to identify a comparator. There was a suggestion in Webb that it might not be unlawful sex discrimination if a woman was dismissed or not recruited because she would be unavailable due to pregnancy for the whole of a fixed-term contract. Two ECJ cases have now made it clear that there is no exception to the principle that to refuse to recruit or to dismiss a woman because she will be absent from work due to pregnancy is unlawful sex discrimination, regardless of whether the employment is to be for a fixed period rather than for an indefinite term: Tele Danmark A/S v Handels- og Kontorfunktionaerernes Forbund i Danmark (HK), acting on behalf of Brandt-Nielsen [2001] IRLR 853 ECJ, and Jiménez Melgar v Ayuntamiento de los Barrios [2001] IRLR 848 ECJ.
For adverse treatment to be held to be on the grounds of pregnancy it is likely that the employer must know, or believe, the woman to be pregnant. In a case concerning the automatic unfair dismissal provisions relating to dismissal for a reason connected with pregnancy the Employment Appeal Tribunal (EAT) confirmed that there can be no automatic unfair dismissal unless the employer knows, believes or suspects the employee to be pregnant: Ramdoolar v Bycity Ltd EAT/0236/04. The same principle is likely to apply to sex discrimination cases since, without such knowledge or belief, the necessary causation could not be established.
The protection of women during and following maternity leave was addressed by the ECJ in Brown v Rentokil Ltd [1998] IRLR 445 ECJ. The employer operated an absence policy that meant employees were dismissed after reaching a certain level of sickness absence. The absences counted by the employer included pregnancy-related sickness absence and Mrs Brown was dismissed under the absence policy as a result. This was found to amount to unlawful sex discrimination. The ECJ made it clear that a woman enjoys protected status from the moment her employer is aware that she is pregnant to the end of her ordinary or additional leave.
In relation to treatment after the maternity leave period the employee would need to show a real or hypothetical male comparator again in order to establish that she had been treated less favourably.
One case attempted to extend this protection further. In Caledonia Bureau Investment & Property v Caffrey [1998] IRLR 110 EAT the EAT held that any dismissal of an employee who was absent because of pregnancy-related sickness even following the maternity leave constituted discrimination. It appears likely that this should not be relied upon as it was decided before the ECJ's ruling in Brown.
Failure to carry out a risk assessment may constitute sex discrimination against a pregnant woman: Day v T Pickles Farms Ltd [1999] IRLR 217 EAT. Mrs Day was an assistant in a sandwich shop where food was cooked. No risk assessment had been carried out. She began to suffer from severe morning sickness, which was made worse by the smell of food cooking and by having to handle food in the shop. The EAT said that a failure to carry out a risk assessment can amount to a detriment entitling the claimant to make a successful sex discrimination claim. The employment tribunal, when the case was remitted to it, found that there was no sex discrimination because, on the facts of the case, if a risk assessment had been carried out, the employer would not have identified any steps that it could have taken to avoid any risk.
The EAT in Hardman v Mallon t/a Orchard Lodge Nursing Home [2002] IRLR 516 EAT held that the failure to carry out a risk assessment in respect of a pregnant care assistant in a nursing home was sex discrimination. It allowed an appeal against the employment tribunal's decision that there was no sex discrimination because the employer would not, and had not, provided a risk assessment in respect of any other employees so the claimant had not been treated less favourably than a man would have been. The tribunal had found that elements of a care assistant's work posed a potential risk to a mother or her unborn child. The EAT held that it was not necessary to compare the employer's treatment with that of either a comparable male employee or a non-pregnant employee. A failure to carry out a risk assessment in respect of a pregnant worker is sex discrimination. In Madarassy v Nomura International plc [2007] IRLR 246 CA the Court of Appeal held that, before a tribunal can decide that there is a potential risk giving rise to the need for a risk assessment, the tribunal needs evidence of such risk. The Health and Safety Executive has issued guidance for employers on how to identify potential risks.
Examples of treatment that has been held to be discrimination include the following:
Depriving a woman of the right to an annual assessment of her performance because she is on maternity leave (Caisse Nationale d'Assurance Vieillesse des Travailleurs Salariés (CNAVTS) v Thibault [1998] IRLR 399 ECJ).
Failure to inform a woman on maternity leave of a post for which she may want to apply becoming available (Visa International Service Association v Paul [2004] IRLR 42 EAT).
Cutting short a woman's probationary period on grounds of pregnancy or by reason of her absence on maternity leave (Haines Lee v Relate Berkshire EAT/1458/01).
Failure to consult a woman on maternity leave about a redundancy situation (McGuigan v T G Baynes & Sons EAT/1114/97).
Dismissing an employee because she was unable to attend a disciplinary hearing due to her pregnancy (Abbey National plc v Formoso [1999] IRLR 222 EAT).
Depriving an employee of sick pay in a situation where other employees would receive sick pay where the reason is because her sickness is due to pregnancy. An employee who is absent with pregnancy-related sickness is entitled to receive the same as any other employee on comparable sickness absence. She is not, however, entitled to full pay during the whole period of her absence where other employees would not be entitled to such pay (North Western Health Board v McKenna [2005] IRLR 399 ECJ).
Many of the cases in relation to indirect sex discrimination are connected with the refusal of part-time or job-share work to employees returning from maternity leave. One of the first cases in this area was The Home Office v Holmes [1984] IRLR 299 EAT. In this case the EAT rejected the Home Office's argument that a requirement of full-time working is justified simply because the bulk of industry is organised in this way. The employer must be able to show objective justification for the refusal to allow a woman to return from maternity leave on a part-time basis when she has previously worked full time. A failure to do so could amount to indirect sex discrimination (see 6.536 Indirect discrimination).
6.541 The Sex Discrimination Act 1975 gives protection, in relation to employment and vocational training, against less favourable treatment on the grounds that the employee intends to undergo, is undergoing or has undergone gender reassignment. Express provisions to this effect were inserted into the Sex Discrimination Act 1975 by the Sex Discrimination (Gender Reassignment) Regulations 1999 following the decision of the European Court of Justice (ECJ) in P v S and Cornwall County Council [1996] IRLR 347 ECJ. 'Gender reassignment' is defined as 'a process which is undertaken under medical supervision for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex, and includes any part of such a process'.
From 1 October 2005 there have also been express provisions in the Sex Discrimination Act 1975 prohibiting harassment on the grounds that the employee intends to undergo, is undergoing or has undergone gender reassignment.
In P v S and Cornwall County Council [1996] IRLR 347 ECJ P was employed as a manager in an educational establishment operated by the council. In April 1992 the chief executive was informed that P intended to undergo gender reassignment. After undergoing minor surgical operations to this end P was given notice of termination of employment. P commenced action against the council on the basis that the dismissal amounted to sex discrimination.
The central question was whether the Equal Treatment Directive precluded the dismissal of a transsexual for a reason related to his or her gender reassignment.
The ECJ held that where a person is dismissed on the grounds that he or she intends to undergo, is undergoing or has undergone gender reassignment he or she is treated unfavourably in comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.
The Employment Appeal Tribunal (EAT) in Chessington World of Adventures Ltd v Reed ex parte News Group Newspapers Ltd [1998] IRLR 56 EAT, a decision before the Sex Discrimination (Gender Reassignment) Regulations 1999 amended the Sex Discrimination Act 1975, held that the Act could be interpreted consistently with the ECJ's ruling in P v S, so claims of discrimination on grounds of gender reassignment could be brought under it. The EAT concluded that where the reason for the unfavourable treatment is sex based, that is a declared intention to undergo gender reassignment, there is no requirement for a male/female comparison to be made. Whether the courts would still consider that no comparison is required is doubtful in the light of later authorities.
Although Chessington interpreted the Sex Discrimination Act 1975 to prohibit discrimination on grounds of gender reassignment, express amendments were made to the Act by the Sex Discrimination (Gender Reassignment) Regulations 1999 to deal with this type of discrimination.
The Gender Recognition Act 2004, which came into effect on 4 April 2005, allows transsexual people to gain legal recognition in their acquired gender by a process of registration. Once issued with a gender recognition certificate, a transsexual person is considered in the eyes of the law to be of his or her acquired gender from the date of issue. It may be a criminal offence to disclose information about a person's gender reassignment process without his or her consent.
Consequences of legal recognition of a transsexual person's acquired gender include the ability to:
acquire a substitute birth certificate including the acquired gender;
marry in the new gender (or form a civil partnership with someone of the same gender when the Civil Partnership Act 2004 comes into force in December 2005);
retire and receive a State Pension at the age appropriate to the acquired gender.
The Sex Discrimination Act 1975, as amended by the Sex Discrimination (Gender Reassignment) Regulations 1999, does not contain any express provisions about the use of single-sex facilities. In Croft v Royal Mail Group plc [2003] IRLR 592 CA the Court of Appeal upheld a tribunal's decision that there was no unlawful discrimination in not permitting Ms Croft, a male to female preoperative transsexual, to use the ladies' toilets at work, although on different grounds. It said that, in considering what amounts to less favourable treatment on grounds of gender reassignment, it does not follow that all such persons are entitled immediately to be treated as members of the sex to which they aspire. However, a permanent refusal of the use of the ladies' toilets to someone presenting to the world as a woman could be an act of discrimination, even if the person had not undergone the final surgical intervention. The moment at which a person at the 'real-life test' stage is entitled to use female toilets depends on all the circumstances. The employer must take into account the stage reached in treatment, including the employee's own assessment and presentation, and is entitled to take into account, although not to be governed by, the susceptibilities of other members of the workforce. In the case in question, the employer was entitled, for a period of time, to rely on the unisex disabled toilet as being a sufficient facility for Ms Croft to use.
There are limited exceptions where the Sex Discrimination Act 1975 permits discrimination against someone on the grounds of gender reassignment. These are:
where being of a particular sex is a genuine occupational qualification for the job as set out in the Sex Discrimination Act 1975 and the employer can show that it is reasonable to prevent the transsexual person from doing the job as a result;
if the job involves conducting intimate searches pursuant to statutory powers, such as the Police and Criminal Evidence Act 1984; or
if the job involves working in a private home where there would be close physical or social contact, or knowledge of the intimate details of a person's life, and the employer can show that people would reasonably object to the job holder being someone who was undergoing or had undergone gender reassignment.
Following amendments by the Employment Equality (Sex Discrimination) Regulations 2005, which took effect on 1 October 2005, the exception for jobs involving conducting intimate searches pursuant to statutory powers will not apply to the filling of a vacancy at a time when the employer already has sufficient employees who are either not transsexual or who have had their acquired gender recognised under the Gender Recognition Act 2004 and are capable of carrying out those duties.
There are also some temporary exceptions that apply to someone who intends to undergo gender reassignment or is undergoing gender reassignment but not to someone who has undergone gender reassignment. These temporary exceptions apply:
where the employee needs to live on premises provided by the employer, reasonable objection could be taken on grounds of privacy and decency to sharing accommodation and facilities, and it is not reasonable to expect the employer either to equip the premises with suitable accommodation or to make alternative arrangements;
where the employee provides vulnerable individuals with personal services promoting their welfare, or similar personal services, and in the reasonable view of the employer those services cannot be effectively provided by a person whilst that person is undergoing gender reassignment.
None of these exceptions apply to someone with a gender recognition certificate, who is to be treated as being of his or her acquired gender.
There is a special exception that may be relied on by organised religions where there are genuine reasons not to employ a transsexual person, whether or not that person has a gender recognition certificate.
In A v Chief Constable of West Yorkshire Police and another [2004] IRLR 573 HL (a case relating to acts that took place before the 1999 amendments to the Sex Discrimination Act 1975) the House of Lords held that A had been subjected to unlawful sex discrimination when rejected for employment as a constable with the West Yorkshire Police because she was a transsexual. The West Yorkshire Police considered that A could not lawfully carry out searches of female suspects. The House of Lords held that EU law required that a trans person must be recognised in his or her reassigned gender for the purposes of sex discrimination law. For the purpose of discrimination between men and women in the fields covered by the Equal Treatment Directive, a trans person is to be regarded as having the sexual identity of the gender to which he or she has been reassigned. The Police and Criminal Evidence Act 1984 had to be interpreted as applying to A in her reassigned gender.
There are limitations on protection against discrimination relating to gender reassignment, in that gender reassignment is not treated the same as pregnancy. The medical side effects will not have the same protection as medical effects linked with pregnancy. In Ashton v Chief Constable of West Mercia Constabulary [2001] ICR 67 EAT, the EAT rejected the employee's claim that her dismissal was connected to her gender reassignment. Following her probationary period she was dismissed for poor work performance. She claimed discrimination on the grounds that the poor performance was connected to the side effects of the gender reassignment treatment. It was held that, unlike pregnancy-related illness, her medical condition was not gender specific.
The ECJ in KB v National Health Service Pensions Agency and another [2004] IRLR 240 ECJ held that legislation that, in breach of the European Convention on Human Rights, prevents a couple such as KB and her transsexual partner fulfilling a marriage requirement necessary for the benefit of a survivor's pension is in principle incompatible with Article 141 of the Treaty establishing the European Community. The pension scheme in question restricts survivor's pension benefits to spouses. KB and her partner are unable to marry because her partner was born a woman. The ECJ said that, since it is for member states to determine the conditions under which legal recognition is given to a change of gender, it was for the national court to determine whether a person in KB's situation could rely on Article 141 in order to gain recognition of her right to nominate her partner as the beneficiary of a survivor's pension. The case was to return to the Court of Appeal for it to apply the ECJ's ruling in the particular case and decide whether KB's partner should be entitled to a survivor's pension benefit. However, the case settled before it returned to the Court of Appeal. Under the Gender Recognition Act 2004 a transsexual person will now be able to apply for a gender recognition certificate. A person with such a certificate will be able to marry in his or her acquired gender (or enter into a civil partnership when the law on civil partnerships comes into force in December 2005) and, therefore, satisfy requirements to qualify for survivor's benefits under an occupational pension scheme.
6.542 As of 1 October 2005 the Sex Discrimination Act 1975 has contained express provisions prohibiting harassment in the employment field, intended to implement provisions in the revised EU Equal Treatment Directive.
Harassment is defined as being where a person engages in unwanted conduct that is either on the ground of the recipient's sex or verbal, non-verbal or physical conduct of a sexual nature, and which has the purpose or effect of violating the recipient's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
Conduct is to be regarded as having the effect described above only if, having regard to all the circumstances, including in particular the perception of the woman, it should be considered as having that effect.
Prior to 1 October 2005 there was no express provision in the Sex Discrimination Act 1975 dealing with sexual harassment. However, cases of sexual harassment were found to be unlawful direct sex discrimination. For there to be unlawful discrimination, the tribunal had to be satisfied that there was less favourable treatment on the ground of the person's sex and that that person had been subjected to a detriment. Case law relating to events before 1 October 2005 may be helpful in interpreting the new provisions, but regard must be had to the different tests involved.
The High Court in R (on the application of the Equal Opportunities Commission) v Secretary of State for Trade and Industry [2007] EWHC 483 HC has held that the present definition of harassment in the Sex Discrimination Act 1975, section 4A(1)(a) needs to be amended to be consistent with European law. It should cover the situation where the effect of the denigratory conduct directed towards another party related to sex, but not of a sexual nature, had the effect of creating a humiliating or offensive environment. The current definition is conduct 'on the ground of her sex'. The High Court also held that there should be protection against harassment by third parties where an employer knows of continuing and/or objectionable conduct but fails to take steps to prevent it.
The House of Lords in Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] IRLR 512 HL clarified that there was no exception in sexual harassment cases to the requirement that less favourable treatment than an actual or hypothetical comparator of the opposite sex be established. If the form of the harassment is sexual or gender specific, this may be strong evidence that the reason for the harassment was gender based. In Moonsar v Fiveways Express Transport Ltd [2005] IRLR 9 EAT the Employment Appeal Tribunal (EAT) held that the downloading of pornographic images by male colleagues in the same room as a woman was potentially less favourable treatment of that woman and the burden would shift to the employer to show that there was not less favourable treatment.
The claimant must now show that the conduct was unwanted and that it had the necessary effect, unless it can be proved that the perpetrator had the purpose of creating such an effect. Previous case law on establishing detriment may be relevant to these requirements. The principles in Thomas and another v Robinson [2003] IRLR 7 EAT, a case of alleged racial harassment, would apply equally to cases of sexual harassment. In this case the EAT confirmed the need to show that the employee has been subjected to a detriment as well as being subjected to less favourable treatment on racial grounds. It said that harassment involves two elements: the targeting of the person being harassed and the causing of distress to the target. An employment tribunal considering whether an employee has been discriminated against by the use of racist language should consider both whether the language has been used and whether the employee has suffered a detriment as a result. In many cases it may be very easy to establish detriment, but it should not be assumed. Undesirable as it may be, there are some work environments in which racial abuse is given and taken in good part by members of different ethnic groups. In such cases, the mere making of a racist remark could not be regarded as a detriment.
An employer will be liable for any acts of unlawful discrimination carried out by its employees during the course of their employment unless it can show that it has taken such steps as were reasonably practicable to prevent those acts.
In Chief Constable of the Lincolnshire Police v Stubbs and others [1999] IRLR 81 EAT, DC Stubbs attended a works leaving party with her boyfriend. On the way to the ladies room she passed DC Walker who acknowledged her and said in a loud voice 'F****** hell, you look worth one. Maybe I shouldn't say that it would be worth some money'. DC Stubbs brought a successful claim of sex discrimination. The tribunal significantly stated that 'these incidents were connected to work and the workplace. They would not have happened but for the claimant's work. Work-related social functions are an extension of employment and we can see no reason to restrict the course of employment to purely what goes on in the workplace.'
The European Commission has produced a Code of Practice on measures to combat sexual harassment. Tribunals, in deciding whether an incident amounts to harassment, often refer to the Code. Sexual harassment is defined by the Code as 'unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work'.
In general it is for the recipient of the words or conduct to decide for him- or herself what is acceptable to him or her and what he or she regards as offensive. However, there is an objective element to assessing whether the conduct is to be regarded as having the requisite effect. It will be so regarded only if, having regard to all the circumstances, including the perception of the recipient, it should reasonably be considered as having that effect. Not all unwanted behaviour will constitute unlawful sex discrimination. On the basis of case law prior to 1 October 2005, which may still be relevant to the new test, it seems that treatment at the lower end of the scale to which many people would not take exception will not constitute sexual harassment unless the recipient has made it clear, in advance, by words or conduct, that such conduct is unwelcome. It is not necessary for a complainant to make a public fuss to indicate disapproval; walking out of the room may be sufficient. Provided that any reasonable person would understand the complainant to be rejecting the conduct of which he or she was complaining, further such conduct will, generally, constitute sexual harassment: (1) Reed and (2) Bull Information Systems Ltd v Stedman [1999] IRLR 299 EAT.
Some conduct will quite clearly be unwelcome, if not expressly invited, and will constitute sexual harassment without the recipient having to make it clear in advance that the conduct is unwelcome. The Employment Appeal Tribunal (EAT) said in Stedman 'A woman does not, for example, have to make it clear in advance that she does not want to be touched in a sexual manner'.
From a practical point of view employers that are aware that bawdy office banter is going on in the workplace should err on the side of caution and discourage that type of behaviour. This will also help avoid the situation where employees feel that they have to put up with an uncomfortable working environment.
Another form of harassment that may grow with the development of technology is e-mail harassment. Remarks made by e-mail are entirely capable of amounting to harassment under the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995. Employers should properly educate employees about the potential liability for abuse and should establish proper guidelines. Consideration should also be given to limiting the use of the internet and the downloading of pornography. Employers risk discrimination complaints if they permit employees to create an uncomfortable working environment by displaying, downloading and circulating explicit material.
Protection from Harassment Act 1997
6.543 Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to 'harassment'. The harassment may consist of bullying, intimidation or harassment, and does not need to be on a prohibited ground (Majrowski v Guy's and St Thomas's NHS Trust [2006] IRLR 695 HL). In Majrowski the claimant argued his manager had bullied him because he was gay. This included being excessively critical of and strict about his time-keeping and his work; isolating him by refusing to talk to him; being rude and abusive in front of other staff; and imposing unrealistic targets for his performance and threatening him with disciplinary action if he did not achieve them.
In Green v DB Group Services (UK) Ltd [2006] IRLR 764 HC the High Court awarded a claimant damages of £852,000 after she suffered a 'relentless campaign of mean and spiteful behaviour' by four women who worked closely with her, and in respect of a male co-worker's behaviour, which was found to be 'domineering, disrespectful, dismissive, confrontational and designed to undermine and belittle her in the view of others'. Although each incident viewed separately was not of major significance, it was their cumulative effect that was important. The bank was found liable for the bullying. This also amounted to harassment under the Protection from Harassment Act 1997. The High Court found that a reasonable employer would have intervened as soon as it was aware of the bullying, but managers in this case had closed their eyes to it.
This emphasises the need for employers to ensure that they have in place an anti-bullying policy that is well publicised to all workers and properly enforced. As soon as an employer is aware that bullying is occurring it should take steps to deal with it.
6.544 David Jones is a
He should discuss with George how he would like to handle the process and try to reach agreement regarding possible problems.
He should assess the expected time off that will be needed for the medical and surgical procedures. There is no specific statutory right to time off, but an employer should not treat the employee any less favourably than an employee absent due to illness or for some other cause.
He should find out if George wishes to be considered for redeployment.
He should find out the expected timescale in relation to the point of change of name and personal details and what amendments will be needed for
He should check whether George wishes to inform colleagues and clients or have the employer inform them.
He should consider whether the anti-harassment policy in its present form is sufficient.
He should ascertain if changes need to be notified to suppliers of work-related benefits, for example insurance providers.
He should agree a procedure for adhering to the dress code in the workplace.
He should agree the point at which George will commence using toilet facilities in his new gender.
6.545
Do not impose any provision, criterion or practice likely to exclude more members of one sex than the other.
Apply any necessary dress or appearance requirements in similar degree to both sexes.
Ensure that workers who have been involved in a sex discrimination claim are treated in the same way as if they had not.
Ensure that the company policy regarding equal opportunities and harassment is effectively communicated and enforced.
Follow up proven harassment claims with appropriate disciplinary action.
Ensure that managers are aware of the issues that could arise in relation to sex discrimination claims.
Investigate harassment claims fully.
Do not place employees at risk of facing discriminatory acts by third parties.
Do not treat less favourably any employees who are pregnant or on maternity leave.
Do not treat an employee less favourably because of gender reassignment.
6.546
Legislation
Employment Rights Act 1996
Equal Pay Act 1970
EU Directive Framework for Equal Treatment
Maternity and Parental Leave etc Regulations 1999 SI 1999/3312
Sex Discrimination Act 1975
Sex Discrimination (Gender Reassignment) Regulations 1999 SI 1999/1102
Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations
2001 SI 2001/2660
Sex Discrimination Act 1975 (Amendment) Regulations 2003 SI 2003/1657
Employment Equality (Sex Discrimination) Regulations 2005 SI 2005/2467
Gender Recognition Act 2004
Civil Partnership Act 2004
Equality Act 2006
Protection from Harassment Act 1997
Cases
A v Chief Constable of
West Yorkshire Police and another [2004] IRLR 573 HL
Abbey Life Assurance Co
Ltd v Tansell [2000] IRLR 387 CA
Abbey National plc v
Formoso [1999] IRLR 222 EAT
Alabaster v Barclays Bank
plc and Secretary of State for Social Security (No.2) [2005] IRLR 576 CA
Anyanwu and another v
South Bank Students' Union and South Bank University [2001] IRLR 305 HL
Ashton v Chief Constable
of West Mercia Constabulary [2001] ICR 67 EAT
Bilka-Kaufhaus GmbH v
Weber von Hartz [1986] IRLR 317 ECJ
British Airways Plc v Starmer [2005] IRLR 862 EAT
Brown v Rentokil Ltd
[1998] IRLR 445 ECJ
Bruce v Addleshaw Booth
& Co [2004] All ER (D) 218 (May) EAT
Burton and Rhule v De Vere
Hotels [1996] IRLR 596 EAT
Caisse Nationale
d'Assurance Vieillesse des Travailleurs Salariés (CNAVTS) v Thibault [1998]
IRLR 399 ECJ
Caledonia Bureau
Investment & Property v Caffrey [1998] IRLR 110 EAT
Canniffe v East Riding of
Yorkshire Council [2000] IRLR 555 EAT
Chessington World of
Adventures Ltd v Reed ex parte News Group Newspapers Ltd [1998] IRLR 56 EAT
Chief Constable of Avon
& Somerset Constabulary v Chew EAT/503/00
Chief Constable of the
Bedfordshire Constabulary v Graham [2002] IRLR 239 EAT
Chief Constable of the
Lincolnshire Police v Stubbs and others [1999] IRLR 81 EAT
Chief Constable of West
Yorkshire Police v Khan [2001] IRLR 830 HL
Chief Constable of West
Yorkshire v Vento [2001] IRLR 124 EAT
Coker and Osamor v Lord
Chancellor and Lord Chancellor's Department [2002] IRLR 80 CA
Commissioners of Inland
Revenue and another v Morgan [2002] IRLR 776 EAT
Croft v Royal Mail Group
plc [2003] IRLR 592 CA
Cross and others v British
Airways plc [2005] IRLR 423 EAT
Day v T Pickles Farms Ltd
[1999] IRLR 217 EAT
Dekker v Stichting
Vormingscentrum Voor Jonge Volwassen (VJV-Centrum) Plus [1991] IRLR 27 ECJ
Elliott v Somerset County
Council [2002] ET/1400922/02
Garry v London Borough of
Ealing [2001] IRLR 681 CA
Gilbank v Miles [2006]
IRLR 538 CA
Green v DB Group Services (UK) Ltd [2006] IRLR 764 HC
Haines Lee v Relate
Berkshire EAT/1458/01
Hall v Woolston Hall
Leisure Ltd [2000] IRLR 578 CA
Hallam and another v
Cheltenham Borough Council and others [2001] IRLR 312 HL
Hampson v Department of
Education and Science [1989] IRLR 69 CA
Hardman v Mallon t/a
Orchard Lodge Nursing Home [2002] IRLR 516 EAT
Igen Ltd (formerly Leeds Careers
Guidance) and others v Wong and other cases [2005] IRLR 258 CA
James v Eastleigh Borough
Council [1990] IRLR 288 HL
Jeremiah v Ministry of
Defence [1979] IRLR 436 CA
Jiménez Melgar v
Ayuntamiento de los Barrios [2001] IRLR 848 ECJ
Jones v Tower Boot Co Ltd
[1997] IRLR 168 CA
Jones v University of
Manchester [1993] IRLR 218 CA
KB v National Health
Service Pensions Agency and another [2004] IRLR 240 ECJ
L B Steel v (1) The Union
of Post Office Workers and (2) The General Post Office [1977] IRLR 288 EAT
Lana v Positive Action
Training in Housing (London) Ltd [2001] IRLR 501 EAT
Lockwood v Crawley Warren
Group Ltd EAT/1176/99
London Underground Ltd v
Edwards (No.2) [1998] IRLR 364 CA
M Schmidt v Austicks
Bookshops Ltd [1977] IRLR 360 EAT
Macdonald v Advocate
General for Scotland; Pearce v Governing Body of Mayfield School [2003] IRLR
512 HL
Madarassy v Nomura
International plc [2007] IRLR 246 CA
Madden v Preferred
Technical Group Cha Ltd and another [2005] IRLR 46 CA
Majrowski v Guy's and St
Thomas's NHS Trust [2006] IRLR 695 HL
Manning v Wick Hill
Limited [2002] ET/2300178/02
McGuigan v T G Baynes
& Sons EAT/1114/97
Moonsar v Fiveways Express
Transport Ltd [2005] IRLR 9 EAT
Nagarajan v London
Regional Transport [1999] IRLR 572 HL
North Western Health Board
v McKenna [2005] IRLR 399 ECJ
P v S and Cornwall County
Council [1996] IRLR 347 ECJ
Pearce v Governing Body of
Mayfield Secondary School [2001] IRLR 669 CA
Pell v Wagstaff and
Wheatley Hotel [2000] ET/2801882/99
R (on the application of the Equal Opportunities Commission)
v Secretary of State for Trade and Industry [2007] EWHC 483 HC
Ramdoolar v Bycity Ltd
EAT/0236/04
(1) Reed and (2) Bull
Information Systems Ltd v Stedman [1999] IRLR 299 EAT
Scott v London Borough of
Hillingdon [2001] EWCA Civ 2005 CA
Shamoon v Chief Constable
of the Royal Ulster Constabulary [2003] IRLR 285 HL
Smith v Penlan Club [2002]
ET/1602995/01
Smith v Reliance Secure
Task Management Ltd t/a Reliance Monitoring Services [2002] ET/1400993/02
Smith v Safeway plc [1996]
IRLR 456 CA
St Helens Metropolitan Borough Council v Derbyshire and Others [2005] IRLR 801 CA
Stoke-on-Trent Community
Transport v Cresswell EAT/359/93
Tarrant v South East
Regional Probation Training Consortium [2002] ET/2305328/01
Tele Danmark A/S v
Handels- og Kontorfunktionaerernes Forbund i Danmark (HK), acting on behalf of
Brandt-Nielsen [2001] IRLR 853 ECJ
The Home Office v Holmes
[1984] IRLR 299 EAT
Thomas and another v
Robinson [2003] IRLR 7 EAT
Visa International Service
Association v Paul [2004] IRLR 42 EAT
Waters v Commissioner of
Police of the Metropolis [1997] IRLR 589 CA
Webb v EMO Air Cargo (UK)
Ltd [1994] IRLR 482 ECJ
Webb v EMO Air Cargo (UK)
Ltd (No.2) [1995] IRLR 645 HL
Whiffen v Milham Ford
Girls' School [2001] IRLR 468 CA
Yeboah v Crofton [2002]
IRLR 634 CA
Questions and answers
6.547
Q326: How are employees protected from sex discrimination?
The Sex Discrimination Act 1975 protects employees from discrimination on the grounds of their sex and because they are married or a civil partner. It also covers those employed under a contract of service or apprenticeship, the self-employed and contract workers.
Q327: When is an employer liable for sex discrimination?
Employers are directly liable under the Sex Discrimination Act 1975, section 6 for discriminating on gender grounds against a woman in respect of recruitment, during her employment or by dismissing her. However, an employer's liability is not just limited to its own actions. Secondary liability may be found where employees, in the course of their employment, perpetrate acts of sex discrimination or where an employer's agent commits an act of discrimination.
Q328: Does direct sex discrimination apply in cases of women only?
Under the Sex Discrimination Act 1975 direct discrimination occurs where a woman is treated less favourably than a man because of her sex. The two key elements in sex discrimination are that the woman is treated less favourably than a man and that the difference in treatment is on the grounds of her sex. However, this will apply equally to the treatment of a man so long as that treatment is gender based.
Q329: How does a court interpret an act of indirect sex discrimination?
Indirect discrimination occurs when a provision, criterion or practice is applied equally to men and women but the effect of the application puts women at a particular disadvantage when compared to men and the employer cannot show it to be a proportionate means of achieving a legitimate aim. It is up to the courts to balance the employer's need to impose the provision, criterion or practice against the discriminatory effect on the employee in question.
Q330: When can a complaint of victimisation be brought under the Sex Discrimination Act 1975?
Under the Sex Discrimination Act 1975, section 4 a claim for victimisation may be brought when an employer has treated an employee unfavourably because he or she has brought or been involved in an earlier complaint of sex discrimination.
Q331: Are there any circumstances in which an employer can insist on recruiting either a man or a woman?
The Sex Discrimination Act 1975 recognises that the effective performance of some jobs is dependent upon the job-holder being of the appropriate sex. Certain genuine occupational qualifications are covered by the Act. One example is where a job needs to be held by a man because it is likely to involve contact with men in circumstances where they might reasonably object to it being carried out by a woman.
Q332: Are pregnancy and maternity rights covered by the Sex Discrimination Act 1975?
Yes, since 1 October 2005 the Sex Discrimination Act 1975 has contained express provisions prohibiting discrimination on the grounds of pregnancy and maternity leave. The new provisions make clearer the rights already established by case law, rather than introducing new rights.
Q730: Is harassment expressly prohibited under the Sex Discrimination Act 1975?
In the past there was no express definition of sexual harassment in the Sex Discrimination Act 1975, but the courts had accepted the concept of harassment as a form of direct sex discrimination.
However, on 1 October 2005 the Employment Equality (Sex Discrimination) Regulations 2005 amended the Act to define harassment as being where a person engages in unwanted conduct that is either on the ground of the recipient's sex or verbal, non-verbal or physical conduct of a sexual nature, and which has the purpose or effect of violating the recipient's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
