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Copyright © 2006, Emerald Group Publishing Limited
Sex discrimination changes
Sex discrimination changes
Employment law appears to be rapidly transforming and in the area of discrimination in particular the rate of change is rapid. This October sees the latest changes to discrimination legislation being focused upon sex discrimination and equal pay. Here we highlight the main changes.
Indirect sex discrimination
Indirect sex discrimination is unlawful under the Sex Discrimination Act 1975 (SDA). It can occur when an apparently neutral “provision, criterion or practice”, which can include a policy, applies to all workers or applicants but causes particular disadvantage to a certain section of women or men. This may be apparent from a comparison of the statistics of male or female workers or applicants who are at a disadvantage. However statistics are not essential. For example, in the case of part-time workers, it has been established that a far greater proportion of them are women than men. Consequently the courts have accepted that statistics in a case of alleged sex discrimination involving part-time workers may be unnecessary. A claim can be brought if the disadvantage can be shown to affect a man or woman in the disadvantaged group.
Under the changes it has been clarified that in order to avoid a complaint of indirect sex discrimination, employers will need to be able to objectively justify a provision, criterion, practice or policy which causes a particular disadvantage by showing that:
the requirement meets a legitimate business aim; and
it is a “proportionate” – or appropriate and necessary – means of meeting that aim.
If the reasons for the provision, criterion, policy or practice, satisfy these two criteria, it is unlikely to constitute unlawful sex discrimination, as there would be a defense to any complaint.
Harassment and sexual harassment
For the first time, it is clear from the SDA, and not just from case law, that harassment on the ground of the complainant’s sex and sexual harassment in the broadest sense are prohibited. There are now three possible types of harassment claim:
Harassment can be action which takes place simply because someone is a woman, or a man – such as putting crucial equipment on a high shelf which can only be reached by tall people (mainly men).
Sexual harassment is an additional and different prohibition covering situations where the unwanted conduct is sexual in nature – such as a person making unwelcome sexually explicit comments or giving unwelcome oral sexual abuse.
It is prohibited to make a decision which is unfavorable to someone because they have has rejected or submitted to harassment – for instance refusing someone a job because they would not submit to particular unwanted conduct, or refusing someone promotion because they did submit to it.
If the conduct has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for someone then it may be harassment, even if creating that kind of environment was not the intention behind the conduct.
Conduct will only be taken to have the effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment if having regard to all the circumstances, including in particular the perception of the complainant, it is reasonably considered as having that effect. This reflects case law, which suggests that it will be for a court or tribunal to rule on the facts of each case as to whether conduct should reasonably be considered as having the effect of harassing the complainant. In such cases, the court or tribunal should give particular regard to the subjective perception of the person making the complaint.
It should be remembered that discrimination on grounds of sex includes discrimination on the grounds of gender reassignment.
Pregnancy and maternity leave
Inclusion for the first time of pregnancy and maternity leave discrimination in the SDA brings increased clarity of rights and responsibilities during pregnancy and maternity leave. No new rights or duties have been created, but it will be clearer that discrimination on grounds of pregnancy or maternity leave is sex discrimination.
If a woman wishes to claim that she has been subject to discrimination on the ground that she was pregnant under the SDA or the EPA, she does not need to compare her treatment to that of a male, because it is not possible to find a male in comparable circumstances i.e. a male who was pregnant. Discrimination related to taking maternity leave can also occur without a male comparator because it is not possible to find a male in comparable circumstances, (i.e. a male having exercised a right to maternity leave). So, for example, a woman would not need a male comparator if she was claiming that she had not received a pay rise to which she would have been entitled if she were at work.
The special protection for pregnancy-related discrimination ends when a woman’s right to statutory leave ends. At that point, she would have to compare her unfavorable treatment with the treatment of a real or hypothetical man in similar circumstances.
An employee may fill in a questionnaire and send this to the employer. It aims to allow both sides to a potential dispute to explain their position. The employer’s response may well satisfy the complainant, who may decide not to take the case further to a Tribunal. The SDA has been amended so it prescribes an eight-week time limit for the employer to return the questionnaire in cases of discrimination or harassment.
The eight-week period replaced the previous guidance that the questionnaire be returned within a “reasonable period”. The eight-week period is already in the Equal Pay Act and the pieces of legislation which prohibit other forms of discrimination.
If the employer takes longer than eight weeks to return the questionnaire, or refuses to respond, and the complaint goes ahead, the Employment Tribunal can draw an adverse inference.
The changes codify into legislation a number of discrimination principles that have been developed through case law. Overall the provisions reassert the need to put into place equality policies throughout the workplace.
Michael BallEmployment partner at Halliwells