Sex discrimination
What to consider when facing race discrimination
The Equality Act 2010 gives protection is given by the discriminated against because:
- you are (or are not) a particular sex
- someone thinks you are the opposite sex (discrimination by perception)
- you are connected to someone of a particular sex (discrimination by association)
Sex discrimination is when you are treated less favourably because of your sex. This might be as a result of a one-off incident or could relate to ongoing treatment or the implementation of a policy.
Direct
Direct sex discrimination is when you have been treated less favourably because of your sex.
For example, a manager who doesn’t want to train up women to work in managerial position because they will just end up leaving to have a baby.
Or refusing to appoint a man into a role because of his sex. However, there may be a defence to a claim if the employer can establish that being a man is a genuine occupational requirement.
If an employer cannot provide an innocent explanation for the less favourable treatment, this would suggest the reason is the employee’s sex.
Indirect
Indirect sex discrimination is when there is a particular policy or way of working that applies to everyone but puts people of a particular sex at a disadvantage.
For example, a support worker who is required to work Saturdays being placed on a less favourable zero hours contract which caused her to lose pay.
Harassment
The Equality Act 2010 makes it unlawful to engage in unwanted conduct relates to a person’s protected characteristic that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. It also recognises that protection from sexual harassment must go further than other protected characteristics.
As such there are three types of harassment that are unlawful.
- First, the protection against being makes you feel humiliated, offended or degraded because of your sex.
- Second is the protection from being made to feel humiliated, offended or degraded because you are treated in a sexual way. This includes verbal and physical treatment, like comments or sexist jokes, touching, or assault. It also covers sending emails of a sexual nature or putting up sexualised pictures.
- Third is the protection from being treated unfairly because you complain about or refuse to put up with sexual harassment.
Harassment is never acceptable. If you are subject to such treatment at work, your employer may be able to claim that they took all reasonable steps to stop this from happening. Unfortunately, in our experience employers will often downplay the seriousness of an incident and in cases where alcohol is involved will suggest this is a mitigating factor rather than understanding that it should be viewed as an aggravating feature.
If you are concerned about harassment, do contact us for a confidential chat and we can discuss your options.
Victimisation
Sex based victimisation is when someone is punishing for complaining about race discrimination in some way or other.
For example, someone is selected for redundancy because they raised a grievance about sex discrimination
How to prove discrimination
The standard of proof in discrimination cases is the normal civil standard, namely whether, on the balance of probabilities (i.e. ‘more likely than not’ or 51% likely) discrimination occurred.
The burden of proof has two stages:
- First, the worker must prove facts from which an employment tribunal could conclude, in the absence of an adequate explanation from the employer, that discrimination had occurred (not could have occurred). This is often referred to as the worker establishing a ‘prima facie’ case.
- If a prima facie case is established, the burden of proof then shifts onto the employer to prove that it/he/she did not commit discriminatory conduct.
Evidence in direct discrimination cases
Employment tribunal cases where there is strong, direct evidence of discrimination are rare. Cases where there is clear evidence of discrimination tend to settle without a hearing because most employers want to avoid the adverse publicity those hearings might attract.
In most discrimination cases, an employment tribunal makes a decision based on what ‘inferences’ it can draw from the presented facts. As a result, there can often be lots of potentially relevant inference evidence which claimants can be tempted into using to prove their discrimination case. In most circumstances, claimants should resist that temptation as good points in a case can be discredited by a claimant arguing weak points which may be difficult to prove and lead to excessive and inconclusive evidence.
This can have the effect of clouding the real issues, detract from any stronger evidence and unnecessarily lengthen the hearing.
Frequently asked questions
Do I need comparative evidence?
Because in direct discrimination cases you need to show that you have been treated less favourably because of your protected characteristic, there is an inherent requirement to establish the someone (‘the comparator’), who did not or would not suffer unfavourable treatment. In most cases, it is impossible to show a real-life comparator where all the relevant circumstances are the same, and so it is necessary to present a hypothetical comparator and consider how they would have been treated. In practice, a claimant’s representative will often give both real and hypothetical comparators in an employment tribunal case.
Is my employer responsible for acts of discrimination by employees?
Employers will generally be liable for acts of discrimination by employees who are acting in the course of their employment. This is known as vicarious liability. Discrimination claims can also be brought directly against individuals, although it is rare for claims to be brought against an individual without a claim also being brought against the employer. If claims are brought against both the employer and individual(s), the employer can decide whether to try to defend itself separately from the individual(s) by arguing that it took all reasonably practicable steps to prevent the discrimination.
Do I need to raise a grievance?
The law does not require you to raise a grievance but, if you are still employed, in most cases you should do so before bringing a claim for discrimination, which you are entitled to do whilst you are still employed.
Do I qualify to bring a discrimination claim?
Yes, if you believe you have been discriminated against there is no length of service or other qualifying requirement.
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If you have been discriminated against at work it is important to seek legal advice at the earliest opportunity.
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