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Discrimination - sex discrimination in the workplace
Summary of the law
It is unlawful for an employer to discriminate against an employee, apprentice or trainee, or a job applicant (‘employee’) because of his or her sex, marital status, or because s/he intends to undergo, has undergone or is undergoing ‘gender reassignment’. There are limited defences to sex discrimination. The law on sex discrimination applies equally to men and women who usually work (or who applied for a job) in GB.
This section does not deal with sex discrimination against persons who are genuinely self-employed. If you do not have to provide your work or services personally, you are probably self-employed. You should get full legal advice.
What is sex discrimination?
Sex discrimination may take various forms and may result from different behaviours and requirements. Discrimination is ‘direct’ if your employer, because of your sex, marital status or gender reassignment, treats you less favourably than he treats or would treat employees of the opposite sex etc. Your treatment will be compared with that of an employee of a similar status and / or who is in similar circumstances to you. For example, if your employer dismisses you because you are pregnant, you will have a sex discrimination claim. Direct sex discrimination is permitted in a few exceptional circumstances (eg where gender is a ‘genuine occupational qualification’).
Sex discrimination is ‘indirect’ where:
(i) your employer has a requirement or condition which he applies to all employees in the same way (eg a requirement that everyone work full time); but
(ii) considerably fewer employees of your sex can comply with the requirement compared with employees of the opposite sex who are in the same circumstances (eg fewer women than men can work full-time because of their child caring responsibilities); and
(iii) you are disadvantaged in some way because you cannot satisfy the requirement (eg you cannot continue working); and
(iv) your employer cannot justify his requirement objectively.
Sex discrimination is prohibited in every stage of the employment, including job advertisement; recruitment, interview and selection of job applicants; the terms and conditions on which employment is offered; promotion and other opportunities; dismissal, selection for redundancy and other unfavourable treatment.
Taking action
If you believe that you were discriminated on the grounds of sex, speak to your employer. If necessary, make a written complaint / issue a formal grievance. Most employers want to comply with the law. So, a change should take place. If you are a union member, see if it can help.
If nothing changes, you could bring legal action for sex discrimination. If you were dismissed, made redundant or had to resign, you may have an additional claim for ‘unfair dismissal’, redundancy payment and / or ‘constructive dismissal’. You should get full legal advice before you take legal action.
Most complaints will be heard at the employment tribunal which is local to where you work(ed) or applied to work. You must make sure that your claim arrives at the tribunal within 3 months. This begins with the date of the act you complain about (eg when you were not hired). If you were dismissed, made redundant or resigned, time starts to run from the ‘effective date of termination’. Normally, this is your last day at work. Only in truly exceptional circumstances will the tribunal allow you to make a later complaint.
If your claim is successful, you are likely to recover compensation. This will aim to reimburse you for any losses you suffered or will suffer as a result of the discrimination (eg loss of salary). You will also receive an amount for injury to your feelings. Although there is no limit on the amount which can be awarded in discrimination cases, the level of compensation will be linked to your losses. And, you must minimise your losses. For example, you may have to look for another job.
Legal provision
Sex Discrimination Act 1975, as amended.
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