Unlawful discrimination against individuals in the workplace because of their sex is outlawed under the Equality Act 2010. Both men and women are protected. The Act makes it unlawful for employers to discriminate against employees because of their sex, whether in a single incidence or through a rule or policy.
The prohibition also applies to ‘principals’, ie. those who make work available for a worker who is employed by someone else and supplied by that employer under a contract between the employer and the principal, such as employment agencies.
What is prohibited by the 2010 Act?
The Equality Act covers most types of illegal discrimination based on nine ‘protected characteristics’. These protected characteristics include sex, sexual orientation, gender reassignment, marriage and civil partnership.
Both direct and indirect discrimination against an individual, whether an employee or job applicant for employment on grounds of their sex is prohibited. Discrimination takes place when:
- someone is treated worse than another because of a protected characteristic
- a policy or rule or process is implemented that has a more detrimental effect on a person with a protected characteristic than someone who doesn’t
- there is victimisation or harassment
The discrimination does not have to be intentional to amount to unlawful discrimination, so an employer cannot hide behind the excuse that it did not realise its conduct or policy was discriminatory.
What is direct discrimination?
There is direct discrimination if you have been treated differently and ‘less favourably’ (ie. to your detriment) because of your sex. For instance, you have responded to a job advertisement but the employer decides it would prefer a male because they will not get pregnant and go on maternity leave.
You could be treated less favourably in a number of ways because of your sex, including your perceived sex or orientation, or your association with someone of a particular sex (this is known as direct discrimination by association).
What is indirect discrimination?
Direct discrimination takes place when an employer applies a rule, practice or procedure to all employees, but it disadvantages those of a particular sex. For instance, a requirement that you must be at least 6 feet tall will disadvantage potential females, who are naturally typically shorter than men; or requiring employees to change their work shifts from day to night – therefore discriminating against women who have young families.
To bring a claim, you would have to show how you have been disadvantaged, and how it discriminates against others of the same sex.
What is victimisation and harassment?
Sexual harassment in the workplace occurs where an employee is subjected to unwanted conduct of a sexual nature which has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.
Victimisation is where the employee is subjected to a detriment because they have (or it is believed they have or may):
- brought or given evidence or information in proceedings brought under the Act
- done something for the purposes of or in connection with the Act, or
- made an allegation that a person has breached the Act
Can sex discrimination ever be lawful?
Yes, in some cases sex discrimination may be legally justified if it is necessary for the business to work effectively. For instance, a production company can justify requiring only a female actor to play the part of Juliet in Romeo and Juliet, a women’s refuge requiring female staff only, or a church advertising for a male pastor. However, there must be a good reason (‘objective justification’), such as the need for privacy or self-guarding needs.
It is also not unlawful sex discrimination against males for an employer to provide special treatment for a female who is pregnant or who has just given birth. However, when granting special treatment to a female employment in those circumstances, the treatment must be a proportionate means to reflect the disadvantages caused by her pregnancy or having given birth.
What about pay and pension schemes?
Under the 2010 Act, employers must not discriminate on the basis of sex when they are considering issues such as pay and benefits, service benefits, holiday pay and bonus payments.
It is also unlawful for an employer (and managers and trustees) to discriminate against a member or prospective member when operating their pension scheme. This applies whether it is an occupational pension scheme or a personal pensions scheme. For more information about equal pay, read here.