Although discrimination on grounds of gender – or sex – regarding pay and other contractual terms of employment was first made unlawful in Great Britain in 1970 under the Equal Pay Act, sex discrimination in respect of all aspects of the employment relationship was first made unlawful in 1975. The current law on sex discrimination is now set out in the Equality Act 2010 (the Act) which provides for protection from discrimination in the workplace on the grounds of a number of protected characteristics including disability, race, sex, age, sexual orientation, pregnancy and maternity, religion or belief, gender reassignment and marriage and civil partnership. The law on equal pay is also contained in the Act.
What is the definition of sex?
The protected characteristic of sex in the Act is an individual’s gender, male or female.
Sex discrimination in the workplace
The law prohibiting sex discrimination in the workplace applies to all stages of the employment relationship including recruitment, terms and conditions of employment, promotions, transfers, training and dismissal – and there are a number of ways under the Act in which discrimination may occur.
These include where an employer or prospective employer has directly discriminated against an employee or job applicant by treating them less favourably because of their sex (for example, where a prospective employer refuses to offer an applicant a job because they are male or female); or has discriminated indirectly against them by applying a provision, criterion or practice (such as a requirement to work full-time) which disadvantages job applicants or employees of their particular sex without objective justification.
It is also possible for an employer to discriminate against someone because of their association with someone of a particular sex or because of their perceived sex.
Discrimination on grounds of sex may be permitted in certain limited circumstances. For example, an employer may rely on the general occupational requirement exception where only people of a particular sex can do a particular job because of the nature of the job in question and where this can be objectively justified. For example, the need for authenticity might require someone of a particular sex for an acting or modelling job, or considerations of privacy might require a changing room attendant of be of the same sex as those using the facilities. The explanatory notes to the Act stress that the requirement must be “crucial to the post” and must not be a sham or pretext.
In addition, where the individual who is complaining of less favourable treatment is a man, no account can be taken of special treatment afforded to a woman in connection with pregnancy or childbirth. This means, for example, that a man cannot claim that he has been discriminated against on grounds of his sex because he is not entitled to the maternity benefits available to a woman. There are limits, however, to the extent of the special treatment afforded to women in these circumstances – they should only be treated more favourably than their male colleagues to the extent necessary to remove the disadvantages caused by their condition.
Where a job applicant or employee has been discriminated against on grounds of sex, they must bring their complaint to the employment tribunal within three months of the discriminatory act. If the employer is found liable, they may be awarded compensation without limit, which will be calculated according to the financial loss suffered as a result of the discrimination. Compensation may also cover non-financial losses, such as an award for injury to feelings.