Sex discrimination

When is an employer liable for sex discrimination?

Employers are directly liable under the Sex Discrimination Act 1975, section 6, for discriminating on gender grounds against a woman in respect of recruitment, during her employment or by dismissing her. And that liability is not limited to the employer’s actions. Secondary liability may be found, where employees, in the course of their employment, or an employer’s agent act in a discriminatory way.

What is direct sex discrimination?

Under the 1975 Act direct discrimination occurs where a woman is treated less favourably than a man because of her sex or because she is married. The two key elements in sex discrimination are that the woman is treated less favourably than a man and that the difference in treatment is on the grounds of her sex. However, this will apply equally to the treatment of a man, so long as that treatment is gender based.
Marriage discrimination occurs where a married woman is treated less favourably than a single woman because she is married. Similarly, a married man can compare his treatment with that of a single man.

What is indirect sex discrimination?

Indirect discrimination occurs when a provision or practice is applied equally to men and women, but the effect is to disadvantage women because a considerably smaller proportion of women than men are able to comply with it. The employer must be able to show that it is justifiable to avoid liability. It is up to the courts to balance the employer’s need to impose the provision or practice against the discriminatory effect on the employee. Again, men are also protected.

When can a complaint of victimisation be brought under the Sex Discrimination Act 1975?

Under section 4, a claim for victimisation can be brought when an employer has treated an individual less favourably because they have brought or been involved in an earlier complaint of sex discrimination. They may, for example, have been treated less favourably because they gave evidence in connection with a sex discrimination claim brought by a fellow worker.

When can an employer insist on recruiting a man or a woman?

The 1975 Act recognises that the effective performance of some jobs depends on the job-holder being of the appropriate sex. The list of genuine occupational qualifications covered by the Act is exhaustive.

It includes cases where a job needs to be held by a man because it is likely to involve contact with men in circumstances where they might reasonably object to it being carried out by a woman, as well as where the job-holder provides individuals with personal services promoting their welfare which can most effectively be provided by a man.

Are pregnancy or maternity rights covered by the Sex Discrimination Act 1975?

The 1975 Act contains no specific provisions relating to women who are pregnant or absent from work on maternity leave. These are found in the Employment Rights Act 1996 and the Maternity and Parental Leave, etc, Regulations 1999. They include the right not to be unfairly dismissed or suffer a detriment on the grounds of pregnancy or maternity.

However, discrimination on the grounds of pregnancy is an area that has developed into a special branch of sex discrimination law, principally because of the adoption of EU legislation such as the Equal Treatment Directive and Pregnant Workers Directive.

On which party does the burden of proof lie?

The 1975 Act says that, where an applicant proves facts from which the tribunal could conclude that the respondent had committed a discriminatory act, the tribunal will uphold the complaint unless the employer can provide an adequate non-discriminatory explanation for the treatment of the employee.

The Employment Appeal Tribunal’s guidance on this was recently reviewed and amended by the Court of Appeal in Igen Limited and others v Wong and other cases [2005] EWCA Civ 142 CA.

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