Sex Discrimination under the Equality Act 2010

What is sexual discrimination?

Sexual discrimination occurs when someone is treated differently because of their sex. Under the Equality Act 2010 (EqA 2010), you are protected from discrimination when you are:

  • at work;
  • using public services, such as healthcare or education;
  • being provided with services and goods;
  • using public transport;
  • joining a club or association;
  • contacting public bodies, eg, a local council or a government department.

The Act states that you must not be discriminated against because you are a particular sex; someone believes you are the opposite sex (discrimination by perception); or you are connected with someone of a particular sex (discrimination by association).

There are four types of sex discrimination:

  1. direct;
  2. indirect;
  3. victimisation;
  4. harassment.

Direct sexual discrimination

This occurs when a man or woman is treated worse than someone of the opposite sex would be in a similar situation. This could include, for example, employing or promoting a male worker with fewer qualifications or less experience over a female worker, or demoting a man or woman upon their return from paternity or maternity leave.

Indirect sexual discrimination

Indirect discrimination is when an organisation’s working policies or methods put male or female workers at a disadvantage, ie, creating full-time working patterns only, height or weight restrictions, or the requirement to relocate or work unsociable hours where a mother has childcare commitments.

Sexual harassment

Sexual harassment can come in three different forms:

  • when someone makes you feel humiliated, offended or degraded because of your sex;
  • when someone makes you feel humiliated, offended or degraded because they treat you in a sexual manner. This covers harassment which is verbal (eg, indecent remarks), non-verbal (eg, leering or displaying sexually explicit material) and physical (eg, rape, sexual assault or unwanted touching);
  • when someone treats you unfairly because you decline to put up with sexual harassment.

If an employer or organisation can show it did everything possible to prevent the harassment, a victim would have to sue the harasser, rather than the employer/organisation.

Victimisation

This arises when someone is mistreated because they have made a complaint of sex related discrimination under EqA 2010. It can also occur if they are supporting someone who has made a sex discrimination complaint.

Exceptions

An employer might be allowed by law to discriminate on the grounds of sex if:

  • Being a specific sex is crucial for the job (eg, working at a women’s refuge or for a bra-fitting service). This is known as an occupational requirement.
  • An organisation is seeking to encourage or develop people of a certain sex that is under-represented or disadvantaged in a role or activity.
  • The armed forces can decline to employ a woman, or limit her access to training or promotion to ensure the combat effectiveness of the armed forces.
  • Organisers of competitive sports can hold separate events for men and women because the differences in stamina, strength and physique would otherwise make the competition unfair.
  • A religious organisation can sometimes restrict employment to a particular sex if the role is for religious purposes.
  • Single sex services can sometimes be offered by an organisation as long as they can justify it (eg, if there is no demand for a similar service for the opposite sex).

Remedies

People who have been a victim of sexual discriminated can:

  • complain to the person or organisation;
  • go to mediation to try to resolve the problem between the parties with the help of an independent mediator;
  • make a claim in a court or employment tribunal.

If a worker wants to take the case to an employment tribunal, they must first tell the Advisory, Conciliation and Arbitration Service (Acas) they intend to make such a claim. They will be offered the chance to try and settle the dispute without going to court by using Acas’s free ‘Early Conciliation’ service.

If the case goes to an employment tribunal, the tribunal can:

  • make a declaration, setting out the rights of the parties;
  • award compensation;
  • make a recommendation of the steps the employer should take to stop or minimise the discrimination.