Sex discrimination refers to when someone is unfairly disadvantaged in the workplace because of their gender. Most sex discrimination is directed towards women, but it is equally unlawful to discriminate against a man because of his gender.
Sex discrimination remains a common workplace issue, as can be seen by the number and type of employment tribunal claims relating to unfair treatment on the grounds of sex.
Employers should take a proactive approach to dealing with sex discrimination in their organisation, both to promote equality of treatment and opportunity between sexes and to meet their legal obligations and avoid discrimination claims.
Sex discrimination under the Equality Act 2010
In the UK, legal protection against sex discrimination was introduced under the Sex Discrimination Act 1975. This was later updated and brought within the Equality Act 2010, which is now the main piece of legislation governing discrimination matters.
Under the Equality Act 2010, an individual must not be discriminated against because:
- They are, or are not, a particular gender.
- Someone thinks an individual is the opposite sex. This is known as perceptive discrimination.
- They are connected to an individual of a particular gender. This is known as associative discrimination.
For the purposes of the Equality Act, sex can mean male, female, or a group of people such as men or boys, women or girls. This includes those who have undergone gender reassignment.
The Equality Act 2010 aims to protect the rights of everyone in all areas of their lives. As well as sex discrimination, the Equality Act also protects people from discrimination in relation to the following ‘protected characteristics‘:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion and belief
- Sexual orientation
The term ‘sex’ generally refers to a person’s biological differences, while the term ‘gender’ is typically accepted as referring to social roles based on sex or personal identification. This can become important in legal terms when considering discrimination due to gender reassignment. This is a protected characteristic under the Equality Act 2010, and while it is a separate issue, the forms of discrimination outlined in this article also apply.
Types of sex discrimination
People are not permitted to discriminate, harass, or victimise another person under the legislation because they fall into any of the protected characteristics, or they are perceived to fall into any of these categories, or they associate with someone with any of the protected characteristics.
Within a workplace setting, this means treating people equally in all aspects of their working across all stages of the employment lifecycle, including:
- When someone applies for a job
- Employment terms and conditions
- Flexible and part-time working arrangements
- Pay and benefits
- Training, development, appraisals or promotion
- Redundancy, retirement or dismissal
The law categorises four main types of sex discrimination:
Direct Discrimination
This occurs when, because of their gender, someone is treated worse than another of the opposite sex who is in a similar situation. For example, a nightclub charges men to get in, but offers free entry to women.
Indirect Discrimination
This happens when an organisation has a way of working or particular policy that applies in the same way to both genders, but which puts an individual at a disadvantage because of their sex. This could occur if an employer changes shift patterns so their staff can finish at 5pm instead of 3pm. This is more likely to affect female employees who tend to shoulder the burden of caring responsibilities, resulting in them being unable to collect their children from school or childcare.
Indirect discrimination can be allowed if the employer or organisation can show there is a good reason for the policy. This is called ‘objective justification’.
Harassment
There are three types of harassment.
The first is the same for all protected characteristics, and happens when someone makes another feel humiliated, offended, or degraded. For example, a line manager could make comments that there is no point promoting women of child-bearing age because they are likely to leave to have children. Although these comments are not directed towards a particular female employee, it may cause a female member of staff to worry about their career. This could be considered as harassment.
The second type is sexual harassment. This is when someone makes another feel humiliated, offended, or degraded because they treat that person in a sexual manner. This is known as ‘unwanted conduct of a sexual nature’ and covers both verbal and physical harassment such as sexual comments or jokes, touching or assault. Sending emails of a sexual nature, putting up pornographic material around the workplace or distributing it via text or email is also covered under the legislation.
The third type of harassment occurs where someone treats another unfairly because they refused to put up with sexual harassment. This also covers unfair treatment, even where the person had previously accepted sexual conduct. For example, a female employee had a brief sexual relationship with her manager. After it ended, she applied for a promotion but was turned down. She believes it was because the relationship with her boss had ended.
Harassment can never be justified, however if an employer can prove it did everything possible to prevent their employee behaving in a certain way, a victim of harassment cannot make a claim. However, the victim could make a claim against their harasser instead.
Victimisation
This is where someone is treated badly because they have made a complaint of sex-related discrimination under the Equality Act 2010. It can also happen to someone who is supporting a victim who has made a complaint about sex discrimination.
Best practice for employers
Employers have an essential role in creating inclusive and fair workplace environments. As part of a consistent inclusion, diversity, and employee engagement policy, employers should perform thorough reviews of their strategies and working practices to remove bias and unfair discrimination.
Inclusion policies
There is no legal requirement for employers to have a written inclusion policy. In some discrimination cases, employers may have a valid defence if they can demonstrate they took all reasonable steps to prevent discrimination happening. Having a comprehensive policy with relevant training helps employers to distance themselves from liability for acts of harassment by someone they employ. Having an inclusion policy also shows the employer takes their legal and moral obligations seriously and can also encourage employees to treat others equally.
Communication & training
Ideally, employers should:
- Communicate their absolute commitment to inclusion in the workplace and ensure equality and diversity strategy policy statements are available for all to see. A variety of communication methods can be used to achieve this, such as using company intranets or via tailored emails.
- Employers should ensure all employees understand their own personal responsibility to treat co-workers with respect.
- Employers should make it clear they have a zero-tolerance policy towards bullying, harassment and discrimination. This can be achieved by providing examples of the standards of behaviour expected, what sex discrimination and harassment looks like, and setting out the consequences for breaking codes of behaviour.
- Ensure employees know how to report any instances of bullying, harassment or discrimination and feel able to do so without fear of adverse consequences. Employers should proactively deal with all complaints, swiftly, seriously, and with compassion.
- By ensuring every line manager understands their role in promoting inclusion and they are trained appropriately, means that are more likely to feel confident when dealing with any form of inappropriate behaviour and be equipped to challenge it accordingly.
- Employers should work closely with managers to ensure people management practices are fairly implemented and show consistency across the board. They also need to ensure evidence can be provided for any promotion and reward decisions.
- Working with employee networks helps an employer to understand the specific issues of their workforce. This could be a gender network or resource group, for example. This can help ensure an employer is better able to support staff and work collaboratively with them when communicating the importance of inclusion and diversity to the rest of the workplace.
Reviewing employment practices
Employers should ensure:
- They assign senior-level responsibilities for diversity matters, including a sponsor for gender inclusivity and allocating sufficient and appropriate resources to achieve it.
Recruitment and selection processes are fair and not open to discrimination based on someone’s gender. For example, take care when drafting job advertisement and descriptions, ensuring they avoid discrimination, stereotypical language, and images. Employers should aim to attract candidates from diverse sources and a range of backgrounds. - They consider including a statement on flexible working in job advertisements, which signals to applicants they are open to discussing how the role could be performed flexibly from the outset.
- A diversity statement is incorporated within every job advertisement. If possible, linking their inclusion and diversity webpage to enable candidates to find out more about the organisation’s commitment.
- They operate consistent and transparent performance management policies and processes and check that career pathways, promotion and development opportunities are inclusive for all employees, regardless of gender.
- Their policies and procedures, terms and conditions of employment are reviewed to ensure fairness and legal compliance. This should include flexible working practices and dress codes. Employers should try to keep the wording of procedures and policies gender-neutral where possible. If employers have a gender network, consider involving them in reviewing such policies.
- Examine the reasons for any gender imbalance at different levels within the organisation, and across the full range of occupations and roles. They should identify any action required to be taken to remove barriers to entry and progression for both men and women. Gender pay gap reporting could be used to inform the approach.
Is it ever lawful for employers to treat people differently?
The Equality Act provides certain exceptions that allow employers to discriminate because of gender. A difference in treatment may be lawful in the following situations:
Being a particular gender is essential for a job.
This is known as an ‘occupational requirement’ and includes some roles which require someone of a particular gender for reasons of privacy and decency or where personal services are provided. For example, a women’s domestic violence refuge could employ only female staff.
An organisation is taking positive action.
Positive action can be used to develop or encourage people of a particular gender that is disadvantaged or under-represented in a role. This could be where, for example, an engineering firm advertises for a trainee engineer, emphasising applications from women are welcome.
Other exceptions
The armed forces can refuse to employ a woman or limit her access to promotion or training if it means they can ensure combat effectiveness. In competitive sport, organisers can hold separate events for men and women because of the natural differences in strength, stamina, and physique which would otherwise make the competition unfair. A religious organisation can sometimes restrict employment to one gender if the role is for religious purposes. For example, a catholic church can require its priest to be a man.
Sex discrimination FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
