The Sex Discrimination Act 1975 as amended prohibits discrimination on the grounds of gender and gender reassignment (transsexualism).

What areas do I have to look out for?
It is unlawful to discriminate against:

1. Job applicants in all the arrangements for determining who gets a job; in the terms that are offered; or by refusing or deliberately omitting to offer employment.
 
2. Employees in the terms of employment, including opportunities for promotion, training, benefits etc; or by dismissing them or placing them at a disadvantage causing damage or harm. Ex-employees are also protected by the Act in certain circumstances - for example, the refusal to give a reference to an ex-employee who had made complaints of sex discrimination, if the employer would normally provide a reference for ex-employees.

 
3. The self-employed. Provided the self-employed person carries out the work personally, the scope of the protection is the same as described above.
 
4. Contract workers (agency workers) in the terms on which they are allowed to do their work; by not allowing them to continue with the work; in the way access is granted to benefits, facilities or services, or deliberately refusing or omitting access; or by subjecting them to detriment.

What are the different types of discrimination?
Direct Discrimination
Direct discrimination means treating a person less favourably than another person purely on the grounds of sex, marital status or gender reassignment – eg, not offering a woman employment purely because she is female. Discrimination can never be justified, even if well intentioned.

Indirect Discrimination
Indirect discrimination means imposing a provision, criterion or practice on a woman, say, which the employer applies or would apply to a man, and which is detrimental to her and would be detrimental to a considerably larger proportion of women than men (or vice versa), and which cannot be shown to be justifiable.

An example would be specifying a height requirement of 6ft 2in in a job advertisement for waiting staff - the number of women that could comply would be reduced, placing them at a disadvantage. Indirect discrimination does not apply to gender reassignment.

Gender-specific discrimination
Pregnant women have no comparator (eg, they can not be compared to a pregnant man) so less favourable treatment on grounds of pregnancy is automatically discrimination.  Where conduct is gender-specific sexual harassment – eg, unwelcome remarks about a woman’s breasts, when assessing whether or not a comparator is required (as such remarks could not possibly be made to a man) the courts have suggested that gender-specific conduct points simply to the fact that the discrimination was based on grounds of the victim's sex. The complainant will still need to prove that their treatment was meted out on the grounds of their sex, and as such, a comparator will still be necessary.

Gender reassignment and absence from work
It is unlawful for a person who is absent because they are undergoing gender reassignment to be treated less favourably than if the absence was due to sickness or injury.

Victimisation
If a person has bought proceedings under the act, given evidence in such proceedings, or alleged that something has been done in contravention of the act, it will be discriminatory to treat them less favourably for this reason.

Harassment
Harassment is a particular form of sex discrimination, currently defined by case law and European law. The latter defines it as “unwanted conduct related to the sex of a person occurring with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment”, which fits squarely with the legal test for direct discrimination. Sexual harassment is specifically defined under European law as occurring where "any form of unwanted verbal, non-verbal or physical conduct of a sexual nature" takes place. The domestic act must be amended to reflect European law by 5 October 2005, and is likely to include a requirement that, having regard to the perception of the victim, the conduct can "reasonably be considered as having the effect" set out above.

Under case law, a complainant must show that her treatment was because of her sex, and a tribunal will need to be satisfied that this was the case before a claim for harassment can succeed.

How do I avoid discriminating?
It is lawful to discriminate in circumstance where being a specific sex is a genuine occupational qualification for the job. For example, where the essential nature of the job requires either a man or woman for reasons of physiology or authenticity; if one particular sex is required for reasons of decency or privacy; if the employee must live in accommodation where the sleeping and sanitary facilities are for one sex only; in single-sex establishments (eg, hospitals or old people’s homes); where the job is one of two held by a married couple.

What else should I be wary of?
The act does not permit positive discrimination - although, if it can be proved that persons of that particular sex were drastically underrepresented in the job concerned over the previous 12 months, the employer can offer access to training for particular work.

You may be liable for acts of discrimination committed by third parties (eg, customers, visitors, etc), if only where the reason for your failure to act itself amounts to discrimination.

What about sexism from colleagues?
It is unlawful to instruct or attempt to instruct or induce another person to discriminate.

Employers are responsible for acts of discrimination committed by employees during the course of employment, whether they were committed with or without the employer’s knowledge or approval.  This includes discrimination at events that are held outside of work but where the nature of the event can be directly linked to work (eg, a company Christmas function). 

An employer can defend a claim by arguing that reasonable practicable steps were taken to prevent discrimination occurring or re-occurring.  Having a policy is not enough, though: it must be demonstrated that the policy has been properly communicated, and that training and written guidance have been provided.

What happens when a complaint is brought?
A claim may be brought regardless of length of service or hours worked within a three-month period beginning when the act complained of was committed. This time limit may be extended by three months where the minimum statutory grievance procedure applies (which it will not, in the case of harassment), and where such grievance procedures are in the process of being followed internally.

If the employee can show a tribunal that, in the absence of an adequate explanation, discrimination occurred, it is down to the employer to prove it did not discriminate; otherwise the complaint will succeed.

If a tribunal upholds a complaint it can make a declaration order, award unlimited compensation and/or make a recommendation that the employer take steps to obviate or reduce the adverse effect of discrimination on the complaint.

What is the role of the Equal Opportunities Commission?
The EOC is entitled formally to investigate an organisation if it has sufficient evidence to believe that discrimination may be occurring. In such circumstances it can issue a non-discrimination notice and require employers to provide further details to prove that the steps required to prevent discrimination have been taken.  It is also allowed to assist individual employees with claims against employers.

Jonathan Exten-Wright is a partner and Joanna Bragg is a solicitor in the Employment Department of DLA Piper.
jonathan.exten-wright@dlapiper.com
joanna.bragg@dlapiper.com


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