If you believe you have been discriminated against on grounds of sex or you have a query which you wish to discuss on a confidential basis with specialist solicitors, then please complete our enquiry form or call us on 0844 488 9090.Who is protected by the sex discrimination laws?
It is unlawful to discriminate against a female, male or married person and this applies to every stage of the employment relationship i.e. advertising vacancies, recruitment, promotion, training and other opportunities, and dismissal. It is also unlawful to directly discriminate against a person because they intend to undergo, are in the process of or have undergone a gender reassignment operation.
An employer can be held liable for discriminatory acts committed by their employees and it is also unlawful to instruct or induce someone to commit a discriminatory act or aid and abet someone in the performance of a discriminatory act.
What is sex discrimination?
Direct Discrimination is easy to recognise: it occurs where an employee has been treated less favourable and they would not have been treated in this was but for his/her sex or marital status.
If you have been directly discriminated against there is no requirement for you to compare themselves to a colleague of the other sex or marital status who was treated differently in similar circumstances although this would assist in proving your case.
An employer cannot provide a defence once it has been established that they have directly discriminated against you. However, in some circumstances direct sex discrimination is permitted (see below).
If a woman can show that she has been treated unfavourably because she was pregnant or due to another reason connected to her maternity this will amount to direct sex discrimination. There is no need for the woman to compare herself with a male employee and there is no defence once the Tribunal has accepted that the treatment amounts to direct discrimination.
Indirect Discrimination is not as obvious as direct discrimination and occurs where the employer applies a provision or practice which puts more women, men or married individuals at a disadvantage.
If you have been indirectly discriminated against you do not need to show that you cannot comply with the provision or practice that has been imposed however you must show that it has caused you a disadvantage.
If your employer can objectively justify the provision or practice by showing that it is a proportional way (compared to the disadvantage caused) of achieving a legitimate aim, then the Tribunal will not find that they have discriminated against you.
An employer would be guilty of sex discrimination by victimisation if it treated an individual less favourably because they had made a complaint about sex discrimination (formal or informal) or because they supported a colleague in their complaint.
It is usually difficult to prove victimisation claims as the employer will often deny that the treatment was due to the fact that the individual had been involved in a complaint about sex discrimination and allege that the treatment was due to another reason. An employer will have a defence to a victimisation claim if the allegation made by the individual was false and in bad faith.
You may be able to bring a claim for sexual harassment if you have been subjected to unwanted verbal, non-verbal or physical conduct of a sexual nature or due to your sex which has violated your dignity or created an intimidating or offensive environment. You will also be protected if you reject the unwanted conduct and are treated less favourably as a result.
You can bring a claim against the harasser and your employer as they can be held responsible for the discriminatory acts of their employees which took place during the course of employment. An employer does not have to have known about or approved the acts and an employer only has a defence if they can show that have taken all reasonable preventative steps to stop discrimination taking place.
Exceptions to sex discrimination protection
In some circumstance the law will allow employers to treat one particular sex more favourably. In particular this occurs in two areas:
- If an employer identifies that one sex has not been properly represented within certain work areas in the previous 12 months, it may try to encourage individuals of that particular sex to apply, by providing training or through an advertising campaign. However, an employer cannot positively discriminate at the time that they choose an employee and must select according to the merit of the individual.
- If being if a certain sex is a requirement of the job. However an employer should tread with caution if they rely on this as the public’s attitude continuously and an exception which was once acceptable may no longer be so. The applicability of the genuine occupational qualification exception should be considered every time a vacancy is advertised.
Are there any time limits for bringing my claim?
A claim for sex discrimination must be presented to an Employment Tribunal within 3 months less one day of the discriminatory act (if it is an isolated incident) or the last act of discrimination (if there has been an ongoing series of discriminatory acts).