Sex Discrimination refers to treating someone unfairly based on their gender.
Under UK law, sex is a protected characteristic, and this applies equally to men and women, as outlined in the Equality Act 2010.
It's essential to distinguish sex from other protected characteristics, such as:
- Pregnancy and maternity
- Marriage and civil partnerships
- Sexual orientation
These are protected characteristics in their own right under the Equality Act.
Types Of Sex Discrimination
1. Direct Discrimination
This occurs when an employee is treated less favourably because of their sex, how their sex is perceived, or the sex of someone they are associated with.
2. Indirect Discrimination
This happens when provisions or criteria are applied equally to all employees but disproportionately disadvantage employees of a certain sex.
3. Harassment
Under the Equality Act, harassment is unwanted conduct (which can be of a sexual nature) that has the purpose or effect of violating an individual’s dignity or creating an intimidating, degrading, or hostile work environment.
Harassment is not limited to overtly sexual behaviour—it can include remarks or actions related to a person’s sex that degrade or humiliate them.
4. Sexual Harassment
The Worker Protection (Amendment of Equality Act 2010) Act 2023 has made changes to strengthen protections against sexual harassment.
Sexual harassment now explicitly includes any unwanted conduct of a sexual nature, including:
- Written or verbal comments of a sexual nature
- Emails or messages with explicit sexual content
- Unwanted physical contact or touching
Employers are now under a positive duty to take reasonable steps to prevent sexual harassment, including third-party harassment.
Failure to do so could result in liability if harassment occurs.
5. Victimisation
Victimisation occurs when an employee is subjected to detrimental treatment because they have made or supported a complaint of discrimination or harassment.
Sex Discrimination: Key Areas To Be Aware Of
There are six key areas in the workplace where sex discrimination can arise:
1. Recruitment
When recruiting, it is crucial to avoid stereotyping and ensure that job advertisements are open to all sexes. Consider:
- Specifying the required skills, experience, and qualifications
- Advertising on multiple platforms
- Avoiding questions unrelated to the job in applications and interviews
2. Pay, Terms, and Conditions of Employment
Employers must ensure that there are no terms or conditions in place that disadvantage employees because of their sex.
Under the Equality Act, there is a legal requirement to ensure equal pay for equal work between men and women.
3. Promotion
Employees should not be disadvantaged in promotions because of their sex. Employers should avoid promoting stereotypes and ensure fair access to promotional opportunities.
The new amendments further highlight the importance of addressing harassment concerns before they become a barrier to progression.
4. Training
Training opportunities must be made available to all employees equally.
Denying training to individuals based on their sex, or making it difficult for part-time workers (who may often be women), could amount to indirect discrimination.
5. Dismissal
It is unlawful to dismiss someone on the grounds of their sex.
Any dismissal must be based on legitimate reasons and should not involve any discrimination.
6. Redundancy
Employers must ensure that redundancy selection criteria do not discriminate based on sex. Pay particular attention to:
- Absences: Pregnancy-related absences or absences due to caring responsibilities should not be penalised.
- Working hours: Ensure that part-time or flexible workers (who are often women) are not disproportionately affected.
- Job performance: Be mindful of periods of absence, such as maternity or shared parental leave, when assessing performance.
The Occupational Requirement
In exceptionally rare circumstances, it may be lawful to specify that a job applicant must be of a certain sex. This can only be justified if it is:
- Crucial to the role
- Directly related to the nature of the job
- A proportionate means of achieving a legitimate aim
Specialist legal advice should be sought before claiming an occupational requirement, as the threshold for this is stringent.
Positive Action: What You Can Do As An Employer
If you believe that a sex is underrepresented in your organisation, or that applicants of a certain sex are disadvantaged, you can take positive action. This means removing barriers or providing additional training and support to underrepresented groups.
However, positive action must not result in one sex being treated more favourably than the other unless justified as a proportionate means of achieving a legitimate aim. Employers must ensure that any positive action is lawful and in line with the Equality Act.
New Employer Duties under the Worker Protection Act 2023
The Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a new duty on employers to take active steps to prevent sexual harassment in the workplace. Employers must now:
- Regularly review and update anti-harassment policies
- Provide clear reporting procedures for employees
- Take prompt and appropriate action if complaints of harassment arise
Failing to take reasonable steps to prevent sexual harassment can now lead to legal consequences.
Employers are encouraged to provide regular training to all staff on harassment prevention and promote a workplace culture that does not tolerate inappropriate behaviour.
By being proactive, employers can reduce the risk of sex discrimination and sexual harassment in the workplace and foster a safe, inclusive environment for all employees.
