Sex Discrimination

Discrimination in relation to employees is now covered by the Equality Act 2010.  Sex is one of the protected characteristics under the legislation.

Under the Act, there are four types of discrimination defined, these are direct and indirect discrimination as well as harassment and victimisation.

Under the Equality Act 2010 an employer will be in breach if they discriminate directly or indirectly against an employee on the basis of their sex. Direct discrimination is treating an employee differently from another simply because of their sex. Indirect discrimination is applying or implementing a policy that disadvantages an employee or applicant simply because of their sex without justification.

Other breaches under the Act include an employer subjecting an employee or applicant to sexual harassment or treating an employee or applicant less favourably because they rejected or submitted to an act of harassment. The Act also ensures that an employer is not able to victimise a job applicant or employee because of their sex.

There are certain occasions in which sex discrimination is permitted under the Act, these include jobs in which there is an occupational requirement or whereby positive action is required to address gender inequalities that may already be in place in a business.

Other exceptions in relation to sex discrimination include safeguarding national security, where the employer is concerned with providing benefits to the public, insurance contracts and communal accommodation.

For the purposes of the Act, any act perpetrated by an employee will be deemed to have been committed by the employer. This is regardless as to whether the employee’s acts were committed with the knowledge or approval of the employer. This rule is similar for principal and agent relationships whereby a breach of the act committed by an agent is deemed to have been committed by the principal; this is also regardless as to whether the principal had knowledge or approval of the breach.

Employers at times can also be liable for sexual harassment which is committed by third parties. This could be a customer or supplier or any other third party which an employee will come into contact with during the course of their employment. For the employer to be liable it has to be shown that they did not take appropriate steps to prevent the third party from committing the harassment.

If an employee wants to bring a sex discrimination claim they can submit questions to the employer in order to better ascertain as to whether they have a claim or not. These questions can be submitted to the employer before a claim is submitted or within 28 days of a claim being submitted to the Tribunal. The questions do not have to be answered by the employer, however, the Tribunal is entitled to draw an inference from a non-reply by the employer. These questions and answers are admissible in evidence at the Tribunal.

A claim for sexual discrimination has to be brought to the Tribunal within three months of the date to which the complaint relates.

If an employee brings a successful claim in the Tribunal, they may make one or more orders. These orders include a declaration of the rights of the parties, compensation and an appropriate recommendation from the Tribunal as to what steps the employer should take to reduce the adverse effect of sex discrimination.