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The Sex Discrimination Act 1975, makes it unlawful for an individual to be discriminated against in the workplace, in relation to selection for a job, training, promotion, work practices, dismissal or any other disadvantage such as sexual harassment.
The Act also outlaws discrimination in the areas of education and the supply of goods and services. This booklet is solely concerned with employment. It is intended as a brief summary of the law in this area.
The Act applies to both men and women, and also covers discrimination on the grounds of marital status. However, generally it is women who are discriminated against and therefore for the purpose of this booklet we will assume that it is a women who has suffered the discrimination.
The Act does not require any qualifying period of employment. An employee is covered from the moment that they apply for a job. This protection continues throughout the period of employment, and may also cover the provision of references for a former employee after the employment has terminated. It covers, not just employees but workers, agency workers and often also the self employed.
Discrimination is divided into two main categories, direct and indirect discrimination. Broadly, direct discrimination occurs where a person is treated differently on the grounds of their gender. Indirect discrimination, is where an employer applies a requirement or policy, which though, on the face of it has nothing to do with gender, in practice tends to effect one sex rather than another.
Section 1 (1) (a) of the Act states that it is unlawful discrimination for an employer to treat an employee less favourably on the grounds of their sex.
It does not matter what the employers intention or motive was. Even if their motive is benign, it may still be discrimination. There can also be no defence of justification to direct discrimination.
The employee bringing the complaint has to make a comparison between how she was treated and how a man would have been treated. She can either point to an actual colleague, or refer hypothetically to how a man would have been treated.
The following situations and examples could give rise to a claim for direct discrimination.
In an interview for a job or promotion the employer only asks female applicants about their domestic circumstances, for example, “What will you do about child care?”.
A man with inferior qualifications, and/or less experience than a women is appointed to the job or the promotion for which they both applied.
A woman is told that she could not be considered for a job because it is “dirty work” or because of “a lack of decent toilet facilities”.
A woman who takes time off for pregnancy or maternity leave is regarded as unreliable and is demoted when she returns to work.
A woman is subject to personal comments about her physical appearance in a way that would not have happened to a man.
A woman is not encouraged to meet clients or invited to social events to meet clients, and instead a primarily male group is selected.
It is also direct discrimination to treat a woman less favourably by reason of her pregnancy or by reason of her taking maternity leave. This includes a pregnancy related illness.
There are special provisions in the SDA prohibiting harassment in employment, vocational training and further education. Harassment is defined as either:
• Unwanted conduct on the grounds of the recipient’s sex or;
• Unwanted verbal, non-verbal or physical conduct of a sexual nature
In either case the conduct must have the purpose, or the effect of violating the recipient’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the recipient.
It is also harassment to treat somebody less favourably because they have rejected or submitted to either type of harassment described above.
Harassment on the grounds that someone intends to undergo, is undergoing or has undergone gender reassignment is also expressly prohibited by the SDA.
There are no express provisions prohibiting harassment in access to goods, facilities and services but the recipient could take a claim of direct sex discrimination based on the fact that that the harasser would not have treated somebody of the opposite sex in this way.
Examples of sexual harassment include the following:
• Physical harassment
• Unwanted sexual comments or personal comments about a
woman’s appearance
• Non verbal harassment such as unwanted gestures or displays of
pornographic pictures
The victim does not have to demonstrate any financial or other specific loss, such as a threat of dismissal. It is enough that her working environment has become intimidating, hostile or offensive.
In one case a school laboratory assistant was subjected to constant suggestive remarks and conduct by two male colleagues as a part of a campaign to persuade her to leave. The tribunal decided that the woman did not have to produce evidence of a man having been treated differently, since the treatment that she received was clearly discriminatory by reason of its sexual character.
Single incidents can constitute harassment, though generally speaking, a one off incident would have to be more serious.
This is where a provision criterion or practice is applied (or would
be applied) to both sexes but which puts one sex (or married
persons) at a particular disadvantage and cannot be shown to be
a proportionate means of meeting a legitimate aim. For example,
a requirement to work full-time might be unlawful discrimination
against women.
The claimant must show that the provision criterion of practice puts or would put the relevant group at a particular disadvantage. This stage is usually the key issue in discrimination cases and the wording ‘puts or would put at a particular disadvantage’, is likely to come under scrutiny in employment tribunals.
The Claimant must also show that she is “put at that disadvantage”. Therefore, if she establishes that women are put at a particular disadvantage compared to men, by a requirement to work full-time, she must also show that she is put at that disadvantage by that requirement. Claimants do not have to show that they have suffered a detriment
A defence of justification is available to employers in an indirect discrimination case. The employer must show that the provision, criterion or practice:
• Can be objectively justified on grounds other than sex
• Corresponds to a real need on the part of the employer
• Is appropriate with a view to meeting that need
• Is necessary to meet that need
Despite this clear and fairly stringent test, which should be the starting point, the courts have set out various further tests, including the requirement to balance the needs of the employer and employee. These tests are not always easy to reconcile and the Claimant should obtain advice in relation to this.
Examples of indirect discrimination are:
• Age bars, which can indirectly discriminate against women who
often have taken time out from work to bring up children and
therefore, may acquire their qualifications later than men
• Any benefit which results from length of service may again work
against women who have taken time out from work to bring up
their children
• Mobility clauses may discriminate. Often women are less able
to relocate than men because of their family commitments or
a reliance on their partner’s income as the primary wage earner.
• Height or weight requirements which favour men rather than
women.
• Work that requires unsocial hours or a requirement to work full
time may work against women with child care commitments.
In all these examples, the employer will be able to defend their practices if they can show that they were objectively necessary.
Many women may be deterred from exercising their rights under the Sex Discrimination Act, or supporting others who wish to exercise their rights, for fear that they may be victimised by their employer. The Act, guards against this by making it unlawful for an employer to victimise an individual because she has brought a discrimination claim, or given evidence in a discrimination case, or made an allegation of sex discrimination (whether it has been upheld or not).
To succeed in a victimisation case, it must be shown that the treatment of the employee was less favourable than someone who had not taken these steps, and that the treatment is a result of their pursuing a discrimination case, giving evidence or making allegations of discrimination.
Responsibility for sex discrimination usually lies with the employer, and also any other employee or worker who is found to have discriminated and for whom the employer has responsibility. This is known as vicarious liability.
This covers not only incidents of discrimination occurring in the actual work place, but may also extend to out of work activities such as Christmas parties and drinks in the pub after work.
If the alleged discrimination takes the form of the conduct of another employee, it is usually wise to bring the tribunal application against the employee in question as well as the employer.
Employers have a defence to a complaint of discrimination based on vicarious liability, if they can show that they took all reasonably practicable steps to prevent the discrimination occurring. It is rare for employers to succeed with this defence. But even if they do, the tribunal claim can be pursued against the individual employee.
The Sex Discrimination Act does not apply to workers whose work is done wholly or mainly outside Britain.
It is not unlawful to give special treatment to women in respect of pregnancy and childbirth, for example, maternity leave.
The nature of the job may call either for a man or a woman, for reasons of authenticity, for example, with a model or an actor. The job may involve physical contact, or there may be circumstances where members of one sex might reasonably object to the presence of the other because they are in a state of undress or using sanitary facilities. The work may be concerned with one sex only and require special care, supervision or attention e.g. in hospitals or prisons. All these situations may give rise to the GOR defence.
Proving sex discrimination is not straightforward. A woman complaining of discrimination, the Claimant, has to prove that her employer discriminated against her on the grounds of her sex. This has to be proved “on the balance of probabilities”. This means that the tribunal does not have to be certain, but they have to think it more likely than not that her treatment was on the grounds of her gender.
Once an employee has established facts from which a Tribunal could conclude that there had been discrimination then the burden shifts to the employer to show that no such discrimination, has in fact occurred.
Direct evidence of being treated differently on the grounds of gender is very rarely available. It is unusual to find direct evidence of racial discrimination. Few employers are prepared to admit discrimination and those who are aware of the law may have taken steps to appear to be acting lawfully. Whether or not discrimination can be proved will often depend on what inferences a tribunal can draw from the primary facts.
It helps if the Claimant has available all relevant letters and documents. In cases of sexual harassment, it is useful if the Claimant has made a note of the key incidents and the dates on which they took place.
From October 2004, unless there are special circumstances (e.g. threats or continuing harassment by the employer) the employee must write to the employer raising a grievance and attend one or two meetings before bringing a discrimination claim to an employment tribunal. This is even where the complaint relates to disciplinary action short of dismissal or another grievance.
The employee is allowed to serve a questionnaire on her employers. The purpose of this is to obtain information or documents in order to decide on the strength of her claim, and to establish so far as possible, what the facts are and the reasons for her treatment. An employer’s replies can be referred to in evidence. If an employer fails to reply, or delays in doing so or provides an inadequate response, then this may assist the tribunal in drawing an inference of discrimination.
A questionnaire will not count as raising a formal grievance.
A complaint of sex discrimination in the workplace is lodged with the employment tribunal using form “ET1”.
The Claimant, must complain to the employment tribunal within three months of the act complained of. This time limit is extended by three months, to allow the statutory grievance procedure to take place. From October 2004, unless there are special circumstances (e.g. threats or continuing harassment by the employer) the employee must write to the employer raising a grievance and wait for 28 days before bringing a discrimination claim to an employment tribunal. This is even where the complaint relates to disciplinary action short of dismissal or another grievance. If a grievance is not raised the Tribunal will not have jurisdiction to consider the claim
When the act complained of is dismissal, then the time limit runs from the date on which the contract terminated and not the date on which notice is given. If the discrimination is in a form which continues, for example, a continuing exclusion from a benefit or a continuing course of harassment, then the three month time limit does not start to run until that discrimination finishes.
A tribunal may allow an application to proceed even after the three month time limit if, in the circumstances of the case, it considers it just and equitable to do so.
There are also time limits for serving the questionnaire. If it is lodged
before the tribunal proceedings have started, then it must be served
on the employer within three months of the act complained of. If it is
sent to the employer after tribunal proceedings have begun, then it
must be sent within 21 days of the tribunal application being lodged.
After these time limits, a questionnaire may still be served but only
with the permission of the tribunal.
There are three remedies available to a tribunal:
• Declaration
• Compensation
• Recommendation
A declaration states the rights of the Claimant and in what respect the employer and any employee has acted unlawfully.
Compensation is awarded for injury to feelings and financial losses, if there are any. There is no limit on the amount of compensation that a tribunal may award, and interest is also payable.
Compensation can also include loss of earnings, past and future, loss of pension and any other outlays associated with the discrimination.
The amount of compensation that tribunals award in relation to injury to feelings can vary, depending on the extent to which the individual’s feelings have been injured. Their age and vulnerability may be considered, and also the severity of the discrimination. An award of £750 is at or nearer the minimum. In a recent case, the Employment Appeal Tribunal decided that £12,000 compensation for injury to feelings caused by serious and prolonged discrimination was not excessive, though was at the upper end of the range of awards.
Where the employee has been seriously effected by the discrimination, particularly in harassment cases, this may lead to illness and depression. Compensation for personal injury can also be claimed as part of the tribunal application. A medical report will be needed to support a personal injury claim.
Compensation may be reduced if the Claimant failed to follow the statutory grievance procedure. If a personal injury claim is pursued as part of a sex discrimination case then it may not also be possible for the individual to pursue a separate personal injury claim through the Civil Courts arising out of the same circumstances.
The tribunal’s powers to make recommendations are limited to recommendations for action that will benefit the individual employee and lessen the effect of the discrimination on her. Recommendations may include, for example, that all members of management be trained in equal opportunities, that the employee who has been discriminated against be provided with additional training or mentoring, or be invited to interview in relation to future job applications.
If the employer fails to comply with a recommendation, then a tribunal may order that the employee’s compensation be increased.
Since 1st May 1999, it is unlawful for an employer to discriminate against another person on the grounds that they intend to undergo, are undergoing or have undergone gender reassignment. This covers less favourable treatment due to an employee’s absence for gender reassignment treatment.