Sex Discrimination

Although the Sex Discrimination Act 1975 (SDA) was primarily intended to protect women from discrimination on the grounds of their sex, the legislation also covers men. In one case, a male apprentice successfully claimed sex discrimination on the grounds that his manager had subjected him to physical abuse, which would not have been inflicted on a female apprentice.

In this note, references to "female" and "woman" may be read as references to "male" and "man" as appropriate.

The SDA identifies the following types of discrimination:-

• Direct discrimination.
• Discrimination on grounds of pregnancy and maternity leave.
• Indirect discrimination.
• Victimisation.
• Harassment.

Time limits

Generally, a complaint of sex discrimination made to an employment tribunal must be presented to the tribunal within three months of the act complained of . If the complaint relates to a single act, for example, an isolated incident of sexual harassment, or a discriminatory dismissal, it will usually be easy to identify the date of the complaint and therefore relatively easy to calculate the time limit for presenting the claim to the tribunal.

In cases of "continuing" acts of discrimination, the right to bring legal proceedings continues for three months after the discriminatory act itself has ceased.
The tribunal has jurisdiction to consider complaints brought out of time if it considers that it is "just and equitable" to do so.

Time limits may be extended if the employee has brought a grievance in relation to the discrimination. Please contact us on 01928 736672 or complete our questionnaire for advice in relation to this.

Direct discrimination

A person discriminates against a woman if, on the ground of her sex, he treats her less favourably than he treats or would treat a man. Therefore, direct discrimination involves a difference of treatment as between at least two individuals, on the grounds of their relative sexes.
Less favourable treatment
In order to establish that there has been direct discrimination, there must be consideration of two questions

• Whether there has been less favourable treatment, and
• Whether that less favourable treatment was on the grounds of the sex of the individual.

It is established law that the motive for the less favourable treatment is irrelevant. A "but-for" test should be used, i.e.but for the person’s sex, the person would have been subjected to the treatment complained of. However, the tribunal will also have to consider in more detail the reason why the less favourable treatment occurred.

There is no requirement that discrimination be the sole cause of the treatment complained of. In a situation where several contributing factors resulted in a decision, it is enough that the discriminatory reason was a significant factor.

Not every difference of treatment will constitute "less favourable treatment" and a practical example of this is dress code. There may be a difference in treatment if men and women are required to wear different uniforms, but as long as the standards set are equivalent, the treatment will not be considered to be less favourable.

Also, the fact that an employer's behaviour is unreasonable does not necessarily mean that it is discriminatory. In order for it to be prohibited under the SDA, the reason for the less favourable treatment must be the employee's gender, and not some other factor.
Discrimination on grounds of pregnancy and maternity leave

There will be discrimination against a woman if:

• During a "protected period" a woman is treated less favourably on grounds of her pregnancy; or
• A woman is treated less favourably on grounds that she is exercising or seeking to exercise, or has exercised or sought to exercise, her statutory right to maternity leave.
• A woman is treated less favourably on the ground that she is prohibited from working during compulsory maternity leave.

The definition of "protected period" is the period from conception to the end of ordinary maternity leave, or additional maternity leave if she is so entitled. If a woman suffers a miscarriage, the protected period ends two weeks after the miscarriage.

More often than not a claim of sex discrimination by a pregnant woman will not relate to her pregnancy directly but to a reason connected to her pregnancy. An example was where a teacher at a Catholic school became pregnant by a local priest. The school refused to allow Ms O'Neill to return to work following her maternity leave. Similarly, in Rees v Apollo Watch Repairs Ltd [1996] ICR 466, Ms Rees was absent from work on maternity leave. Her employer found her replacement to be much more efficient and implied that Ms Rees was dismissed on the grounds of her lack of competence. The argument that there was a break in causation between the absence (due to pregnancy) and the dismissal (due to competence) was firmly rejected in the EAT and the dismissal was held to be discriminatory.

IVF treatment

The ECJ has held that the dismissal of a woman, if related to her IVF treatment, will amount to discrimination on the ground of sex.
Dismissal for a reason connected to pregnancy
Section 99(1) of ERA 1996 makes it automatically unfair to dismiss a woman for reasons connected to her pregnancy. This applies even where she has been recruited to work on a fixed-term contract which she cannot fulfil because of her pregnancy or maternity leave.
Pregnancy-related illness
Since dismissal due to pregnancy-related illness is to be treated in the same way as dismissal due to the pregnancy itself, it will be unlawful to dismiss an employee for her absence relating to a pregnancy-related illness at any point between conception and the end of her statutory maternity leave period.
Indirect discrimination
As well as prohibiting direct discrimination, the SDA also seeks to prevent employers applying what might appear to be neutral practices in the workplace but which have the effect of creating an unjustified disadvantage for women (or, conversely, for men). This is generally referred to as "indirect" discrimination.

Indirect discrimination often arises in the context of part-time working and women returning to work after maternity leave. This is because it is accepted by tribunals that women still generally bear greater childcare responsibilities than men. So, having a policy applicable to all employees that no employee may work part-time will indirectly discriminate against women since fewer women than men will be able to work full-time.
Provision, criterion or practice (PCP)
Examples of PCP’s that have been held to be discriminatory are:

• A request to return to work full-time
• A refusal to employ a person with young children
• A rule that part-time workers should be selected for redundancy before full-time workers
• An informal, unwritten policy which indicates that requests to work part-time or on a job-sharing basis would be refused

It is possible for only one person to be affected in order for a PCP to come into effect.
Evidence of indirect discrimination
The SDA requires a claimant to prove facts from which a tribunal could conclude that discrimination has occurred. A claimant will therefore need to adduce evidence to show that there is a prima facie case of indirect discrimination. Once the claimant has proved these facts, the burden of proof shifts to the employer to prove that the treatment complained of was not for a reason related to sex.
Victimisation
Victimisation occurs where a person is discriminated against not because of their gender per se, but because they have sought to exercise or rely upon their rights under the SDA.. In order to benefit from protection under the SDA, the treatment complained of must be for the reason that the person victimised has carried out one of a number of "protected" acts, namely:

• Has brought (or intends to bring) proceedings against the discriminator
• Has given (or intends to give) evidence or information in connection with proceedings brought under the SDA or the Equal Pay Act 1970.
• Has otherwise done anything (or intends to do something) under or by reference to the SDA or the Equal Pay Act.
• Has alleged that the discriminator, or any other person, has committed an act which (whether or not the allegation so states) would amount to contravention of the SDA, or give rise to a claim under the Equal Pay Act 1970

Making an allegation or giving information that turns out to be false can still constitute a protected act, provided that it was done in good faith.
Harassment
The harasser need not be a different sex to their victim.

Harassment is:-

• Unwanted conduct on the ground of the recipient's sex; or
• Unwanted conduct of a sexual nature.

In either case the conduct must have the purpose or effect of:

• Violating the recipient's dignity; or of
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

The definition of sexual harassment now encompasses both harassment of a non-sexual nature, perpetrated on the grounds of the victim's sex, and harassment, which consists of verbal, non-verbal or physical conduct of a sexual nature. If you are not sure of whether your treatment would amount to Harassment, please contact us on 01928 736672 or complete our questionnaire.

Liability for harassment by employees.

An employer will usually be able to avoid liability if it can prove that it took such steps as were "reasonably practicable" to prevent the perpetrator from doing that particular act or acts of that description.

Employers should issue a policy statement (such as an equal opportunities policy or dignity at work policy) expressly stating that sexual harassment will not be tolerated, and that employees have a right to complain should it occur.

Liability under the SDA

Vicarious liability

Employers are vicariously liable for acts of discrimination perpetrated by their employees in the course of employment, subject to the defence that the employer has taken such steps as were reasonably practicable to prevent the employee from doing the act in question, or similar acts.

Remedies

A person can make a complaint to an employment tribunal that another person has committed an unlawful act of discrimination against them. The tribunal may make:

• A declaration that the claimant has been discriminated against.
• A declaration that a term of a contract or collective agreement is void or unenforceable.
• An order that the respondent pays compensation to the claimant.
• A recommendation as to action the respondent should take to obviate or reduce the adverse affect on the claimant of the act of discrimination complained of.

Compensation

The compensation ordered by the tribunal will take account of the financial loss resulting to the claimant due to the discrimination complained of. There is no upper limit on the total amount of financial compensation which can be awarded to successful claimants in discrimination claims. Also, interest may be awarded on the compensation element award (but not the injury to feelings element, see below).

Loss of Earnings and Ancillary Losses

Loss of earnings can be claimed together with loss in relation to items such as the cost of looking for alternative employment and pension loss.
Injury to feelings
In contrast to unfair dismissal cases, successful claimants in discrimination cases are also entitled to compensation for injury to feelings. Indeed, it is possible to succeed in a claim and obtain a remedy even if the only "loss" suffered is injury to feelings. There are three brackets of award:

• £500 to £5,000. The lowest bracket, appropriate in cases of one off or low-level incidents of discrimination or harassment.
• £5,000 to £15,000. The middle bracket, appropriate in cases of more severe acts of discrimination or harassment, or for acts extending over a longer period of time.
• £15,000 to £25,000. The higher bracket, appropriate in cases where there is evidence of a sustained campaign of deliberate discrimination.

Aggravated Damages

It is also possible for awards for injury to feelings to include aggravated damages where the tribunal finds there has been aggravating conduct on the part of the employer.

Personal injury

If a claimant succeeds in a discrimination claim and can show that the discrimination has caused them to sustain (generally psychiatric) injury, then a sum can be awarded for this.