Sex discrimination
Definition of sex discrimination
It is unlawful to treat a person less favourably on the grounds of their gender, their perceived gender or their association with an individual of a particular gender (direct discrimination). It is also unlawful to impose a provision, criterion or practice which puts persons of a different gender at a disadvantage when compared to others (Indirect discrimination).
Scope of unlawful sex discrimination
The scope of unlawful discrimination against job applicants and employees includes prohibition of discrimination in offering employment, in the terms of employment, refusing employment, in the way the employer provides access to promotion, transfer, training or receiving any other benefit, subjecting a person to a detriment or dismissing them.
In some circumstances an employer may be able to justify less favourable treatment.
It is also unlawful to victimise someone for complaining about sex discrimination.
Common types of sex discrimination
Pregnancy related treatment
It is unlawful sex discrimination to discriminate against a woman for a pregnancy related reason. This might be connected with pregnancy, pregnancy related sickness, attending antenatal classes, maternity leave, or a miscarriage or termination. There is also special provision for pregnancy and maternity discrimination within the Equality Act 2010.
For more information see pregancy or maternity discrimination and Maternity & Parental Rights
Sexual harassment
Sexual harassment is also unlawful. Sexual Harassment is defined as unwanted conduct related to a person’s sex or of a sexual nature which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment.
Refusal to allow flexible working
This is an example of indirect discrimination. Requiring an employee to work certain hours constitutes a requirement which may put a woman at a disadvantage if, for example, child care responsibilities make this difficult to comply with.
However, if an employer can justify the requirement, it will not amount to unlawful indirect discrimination.
For more information on applying for flexible working see flexible working rights
Enforcing rights
Claims of unlawful discrimination can be brought by job applicants, employees, workers, contractors, and others by issuing a claim in the Employment Tribunal. There is no qualifying period of employment, before a claim can be made, but any claim must be registered with the Tribunal within 3 months of the act of discrimination, or where there has been a series of incidents which can be characterised as a single act of discrimination, within 3 months of the latest incident of discrimination.
Before sending a claim to the Employment Tribunal the employee must have a certificate from ACAS confirming that conciliation has been attempted. In some circumstances, the time for bringing a claim can be extended as long as the employee has registered for pre claim conciliation with ACAS, using the mandatory ACAS conciliation procedure within 3 months of the date of the incident complained of, but there are still strict time limits for the employee to submit the claim to the employment Tribunal once that period of conciliation has come to an end.
Any claim to an Employment Tribunal must include certification from ACAS that conciliation has been attempted and must be accompanied by the Employment Tribunal fee or a valid and fully evidenced application for a fee remission. If any of these are missing, or if the application form has not been correctly completed or if documents or information is missing, the application will not be accepted and it will be returned to the employee.
In some circumstances a Tribunal will allow a claim to proceed even though it is brought later than 3 months from the date of the incident. A Tribunal will weigh up the interests of the employee and employer to decide whether it is “just and equitable” to allow a late claim to be heard.
Employers are liable for the discriminatory conduct of their employees even if they did not know about it at the time. Exceptionally, if an employer has done all it can do to prevent unlawful discrimination, it may be able to avoid liability.
Claims can also be brought against the individuals who caused the discrimination, employees might choose to do this because they want the individual to be liable for what they did, if there is a risk that the employer can avoid liability, or if there is a risk of the employer’s business going into liquidation.
Links
ACAS guidelines and publications
Equality and Human rights Commission
Disclaimer
Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.