What Is Sex Discrimination?

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Sex Discrimination

Sex (gender) is a protected characteristic under the Equality Act 2010 and applies equally to men and women. Please note that this a different protected characteristic to:

  • Pregnancy and maternity;
  • Marriage and civil partnerships;
  • Sexual orientation;

...which are all protected characteristics in their own right.

What Is Sex Discrimination?

Types Of Sex Discrimination

Direct Discrimination:

Treating an employee less favourably because of their sex, how their sex is perceived or the sex of someone they are associated with.

Indirect Discrimination:

Provisions and criterion are applied equally to all employee, but disadvantage employees of a certain sex.

Harassment:

Unwanted conduct (of a sexual nature), which leads to less favourable treatment of an employee because they have rejected sexual harassment or been the victim of it.

The unwanted conduct must have the purpose or effect of violating a person’s dignity or creating an intimidating and humiliating environment for that individual.

Sexual Harassment:

Sexual harassment can include (but is not limited to):

  • Written or verbal comments of a sexual nature
  • Emails with explicit sexual content
  • Unwanted physical contact and touching

As an employer, you should make sure all employees are aware of and understand what sort of behaviour would be considered sexual harassment. You should deal with any complaints of sexual harassment sensitively and compassionately, as employees may be very distressed and upset.

Victimisation:

Where an employee suffers detrimental treatment due to the fact they have made a complaint or supported a complaint of discrimination or harassment.

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Sex Discrimination: Key Areas To Be Aware Of

There are six common areas in the workplace, where sex discrimination can occur:

Recruitment

When recruiting new staff, it is best to avoid stereotyping and make sure advertisements are open to all, avoiding references to any particular sex. You should bear in mind:

  • The skills, experience and qualifications needed for the job role
  • Not advertising on only one platform
  • The job application form asks only asks for personal information relevant to the job. Likewise, you should not ask any personal questions not related to the job during the interview.

Pay, Terms and Conditions of Employment

As an employer, you should be vigilant that there are no terms and conditions that disadvantage or exclude people because of their sex.

Promotion

Employees should not be overlooked for promotion because of their sex. It would be discriminatory to only provide details of the promotion to one sex, discourage an employee from applying because of their sex, or refuse to promote an employee because they have previously raised a grievance about discrimination.

As an employer, you should be mindful that many women struggle to get promoted due to a lack of flexibility when they have caring responsibilities or being discouraged whether openly or privately from applying for promotions.

Training

Training opportunities should be available to everyone – withholding training from certain sexes would be discriminatory. Employers should be mindful that training is also available for those inflexible or part-time working.

Dismissal

It is unlawful to dismiss someone because of their sex.

Redundancy

An employee cannot be selected for redundancy based on sex. You must be mindful that the redundancy selection criteria does not discriminate, paying extra attention to:

  • Absence:
    • Absences for things such as pregnancy-related absences or care responsibilities should not be considered.
  • Working hours: 
    • You should avoid selecting only those who work part-time or who work flexi-time.
  • Job performance:
  • Skills, experience and qualifications: 
    • For an employee who has missed essential exams to help further their career due to maternity leave, a proportionate adjustment should be made to their score.

The Occupational Requirement

In exceptionally rare circumstances, it may be lawful for you to specify that job applicants must be of a certain sex. If this is the case, any such requirement must:

  • Be crucial to the post and not just an important factor;
  • Relate to the nature of the job;
  • Be a proportionate means of achieving a legitimate aim.

All of the criteria must be satisfied to meet the occupational requirement threshold. Specialist legal advice should be sought before claiming occupational requirement, as the criterion can be difficult to satisfy.

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Positive Action – What You Can Do As An Employer

If, as an employer, you believe that a sex is underrepresented in your organisation, or applicants are disadvantaged or have specific needs related to their sex, you can take positive action.

Positive action does not mean that you treat one sex more favourably than the other. It means that you can remove barriers or disadvantages that may have been created in the workplace, as well as provide training and support for the underrepresented sex.

About the author

James Rowland

Account Services


James is on the Business Development & Account Management team at Neathouse Partners and regularly posts articles surrounding issues in HR & Employment Law, including case law & legislation updates. If you have a particular issue you would like addressed, feel free to drop James an email, and he will be happy to offer his assistance.

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