• If employers have not taken steps to train staff in ways to prevent sex discrimination, they may be vicariously liable for the actions of their employees.
• Non-compliance with the Equality Act 2010 can carry heavy financial penalties as well as a risk of reputational damage.
• Sex discrimination means being treated less favourably because of being a man or a woman.
• As with all discrimination, it is unlawful whether or not it is intended. This includes unintentional discrimination based on unconscious bias and stereotyping.
Up until October 2010, protection against sex discrimination was covered by the Sex Discrimination Act 1975. Today, it’s covered by the Equality Act 2010, which covers all aspects of equality. It sets out nine protected characteristics: sex, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, and sexual orientation. The legislation states that no individual should be discriminated against in service provision, employment or education.
Employers are liable for breaches of the Equality Act 2010. If they have not taken steps to train staff in ways to prevent discrimination, they may be vicariously liable for the actions of their employees. Non-compliance can carry heavy financial penalties as well as reputational damage. It is in the interest of all employers to understand what sex discrimination is and what steps can be taken to eliminate it from the workplace, reduce the risk of non-compliance and create a happier workplace.
Sex discrimination means being treated less favourably because of being a man or a woman. It does not include gender reassignment or sexual orientation, as these are treated as separate protected characteristics.
As with all discrimination, sex discrimination is unlawful whether or not it is intended. This includes unintentional discrimination based on unconscious bias and stereotyping. To reduce the risk of unintentional discrimination, information on unconscious bias and gender stereotyping should be included in regular discrimination awareness training sessions.
In order to assess whether sex discrimination has taken place, a ‘comparator’ needs to be used. A comparator is a person of the opposite sex whose circumstances are the same or very similar to the person who has allegedly been discriminated against. For example, if a man is consistently late for work for no good reason and is penalised by his employer by receiving a warning or being dismissed, a pregnant woman with morning sickness could not be used as a comparator. The comparator would need to be a woman who had also been consistently late for work for no good reason. If there is no real comparator then a hypothetical comparator can be used.
There are a number of different types of sex discrimination.
This occurs when someone is treated less favourably because of their sex or because of an association with a person or people of a certain sex.
An example of discrimination by association would be if someone is treated less favourably by not being considered for a promotion or being excluded from training events because he is not perceived as being ‘one of the boys’ because he prefers to socialise with women.
It is important to remember that sex discrimination does not solely occur against women. In 2006 a former student male nurse won a landmark sex discrimination case against the NHS. The student nurse was told he could not perform intimate medical procedures on women patients such as breast cancer screening without a female chaperone being present. In this instance, the comparator would be a woman with the responsibility for carrying out the same medical procedure.
The Equal Opportunities Commission deemed that the rule that only men carrying out the procedure needed a female chaperone was based on unconscious bias and beliefs that all men are sexual predators. The rule about chaperoning should be applied equally to men and women.
This type of bias and stereotyping where all men are viewed as a potential threat is likely to contribute to men being under-represented in caring roles.
This occurs when a provision, criterion or practice is put in place that may result in a disadvantage because of a person’s sex. This might be when selection criteria are used during an interview process, for example, that would put applications of one sex at a disadvantage. This might include advertising for male assistants to carry out heavy lifting where, in fact, there may be females who could also do the role.
To reduce the risk of discrimination in recruitment or other selection processes, ensure that all selection criteria are as objective as they possibly can be and make sure scoring is carried out independently by more than one person. All hiring managers should be trained in recruitment, selection and equality.
In some circumstances, a single management decision applied to a one person may amount to indirect discrimination. This is why giving flexible working requests full consideration is vital. For example, a woman with childcare responsibilities may ask to reduce her hours to enable her to fulfil her caring responsibilities. If that request is refused and there is no legally fair reason for the refusal, it may be considered indirectly to discriminate against women. The decision, in this instance, applies to one person but there may be a risk that it puts the female workforce generally at more of a disadvantage as, at the current time, more women request flexible working to enable them to provide childcare.
To reduce the risk of discrimination, ensure that the reason for refusal of a flexible working request is always documented and communicated in writing to the person making the request. Fair reasons for refusing a request are:
• the burden of additional costs
• detrimental effect on ability to meet customer demand
• inability to reorganise work among existing staff
• inability to recruit additional staff
• detrimental impact on quality
• detrimental impact on performance
• insufficiency of work during the periods the employee proposes to work.
• planned structural changes.
Harassment because of sex
This occurs when there is a single action or multiple actions of unwanted conduct related to sex which violate dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for the person on the receiving end. It may offend one person or a number of people. It may offend the person it is directed at or people overhearing or watching what is being said or done.
Several factors are taken into consideration when deciding if harassment has taken place – the perception of the alleged victim, the circumstances and whether the effect on the victim is reasonable and proportionate.
Harassment may include language such as referring to a woman as being overly assertive to explain why she was unsuccessful after interview, when the same behaviour in a man would be talked about positively. Harassment includes telling jokes referring to gender stereotypes or it could manifest itself as unwanted conduct of a sexual nature.
This occurs when someone is treated less favourably because they have made or intend to make a complaint or someone believes that they will make a complaint related to sex discrimination.
What does less favourable treatment mean?
Treating someone differently does not always mean that they are being treated less favourably. For example, if men and women are required to adhere to different standards of dress at work it may not be that one is less favourable than another.
An employer required men but not women to wear a collar and tie. In this case the tribunal judged that discrimination had taken place. The decision was appealed and the panel decided that there was an overarching requirement for all staff to dress in a professional and business-like way and so it was not discriminatory. So the factor of even-handedness was a major consideration. In 2018, the Government Equalities Office published a short guide, ‘Dress codes and sex discrimination: what you need to know’. It advises against any gender-specific requirements. So, to prevent discrimination creeping into dress codes it is best not to use generic requirements, if indeed a dress code is required at all.
There are some limited circumstances where there is a genuine occupational requirement to hire only a man or only a woman. For example, a female solicitor may be required to deal with female victims of rape or domestic abuse. Conversely, a male solicitor may be required if the alleged victim is a man.
People with certain beliefs or religion may require to be cared for by someone of the same sex. This, also, would be an occupational requirement.
Where females or males are under-represented or disadvantaged in some sectors or areas of work, there may be a case to recruit or promote a particular sex to redress the imbalance. This does not negate the need for a rigorous assessment of candidates to ensure that the successful applicant has the necessary competencies to be able to carry out the role.
Ensure that your workplace is free from sex discrimination by:
• providing regular awareness sessions covering unconscious bias, stereotyping and discrimination laws so that everyone knows what is expected of them
• regularly reviewing HR policies and procedures and publishing them somewhere that is accessible to the entire workforce
• ensuring that hiring managers are trained in recruitment and selection and handling flexible working requests
• encouraging a high trust culture where people are not afraid to discuss complex issues and challenge inappropriate behaviours and where communication is key
• adopting a zero-tolerance approach.
Use the following item in the Toolkit to put the ideas in the article into practice:
About the author
Yvonne Hardiman, Chartered MCIPD, MA (Management) began her management career at BSI, heading up a publishing, printing and warehousing division. In 2005 she joined a law firm as HR Director and Partner. Today Yvonne enjoys running her own HR consultancy assisting organisations with all aspects of people management.