Sex Discrimination at work - guide for employers and employees

Sex discrimination is a significant issue impacting workplaces across the UK. Protected under the Equality Act 2010, it encompasses various forms of unfair treatment based on a person's sex, including harassment and victimisation.

Legal definition

Sex discrimination occurs when someone is treated unfairly because of their sex. The key forms of sex discrimination are :-

• Direct discrimination - treating someone less favourably because of their sex, such as favouring male candidates for promotions.

• Indirect discrimination - imposing policies or practices that disadvantage one sex more than the other without justification.

• Harassment - unwanted conduct related to sex, including sexual harassment, which involves inappropriate comments, advances, or behaviour that creates a hostile environment.

• Victimisation - penalising someone for making or supporting a complaint about sex discrimination or harassment.

Sex discrimination can occur at any stage of the employment relationship, from recruitment to ongoing employment practices. Employers should be aware of these common scenarios to mitigate risks.

Examples can include making assumptions about a candidate's abilities based on their gender, asking intrusive questions about family plans, marriage, or childcare.

Examples of workplace sex discrimination

Discrimination during employment can take many forms, from unequal pay to harassment. Common examples include :-

• Failing to provide equal pay for work of equal value.

• Offering fewer training or promotion opportunities to one gender.

• Unfair treatment related to pregnancy or maternity leave.

• Ignoring or mishandling sexual harassment complaints.

• Discriminating against flexible working requests, particularly those made by women balancing work and family.

Employer responsibilities

Employers have a legal duty to prevent sex discrimination and to address it promptly if it occurs. An important starting point for employers is to have :-

• Clear policies - such as comprehensive equality, diversity, and anti-harassment policies.

• Regular training - to educate employees and managers on equality, diversity, and inclusion to build awareness.

• Audits and reviews - recruitment processes, pay structures, and promotion criteria to identify biases.

• Transparency - keep detailed records of decisions affecting employees to demonstrate fairness.

Key takeaway - unfortunately, we find that some employers think they are protected just by having comprehensive legal paperwork. The reality is that is that implementing policies is the most important thing, which requires full commitment, consistency of approach and vigilance.

Sex discrimination - complaint or grievance raised

When a discrimination or harassment complaint is made, employers should respond swiftly and appropriately. Key steps include:

• Taking all complaints seriously and acting promptly.

• Following formal grievance procedures while maintaining confidentiality.

• Conducting thorough and impartial investigations.

• Taking disciplinary action where discrimination or harassment is proven.

• Reviewing and improving policies to prevent future incidents.

Key takeaway - an effective response helps protect both employees and the organisation.

Employees subjected to sex discrimination or harassment have legal rights and avenues to seek redress. Understanding these options empowers individuals to take appropriate action.

If discrimination occurs, employees should:

• Keep detailed records of incidents, including dates, times, witnesses, and evidence such as emails.

• Review the employer's policies and procedures.

• Consider raising informal concerns with HR or management, where appropriate.

Formal action the employee may take for sex discrimination

If informal steps fail, employees can:

• Submit a formal grievance in writing.

• Seek advice from ACAS, trade unions, or employment lawyers.

• Lodge a claim with the Employment Tribunal within three months less one day of the discriminatory act.

How to prove a sex discrimination claim

Building a successful claim requires demonstrating that discrimination occurred. Each type of claim has specific elements to establish.

• Direct Discrimination - employees must prove they were treated less favourably, by showing a comparator of the opposite sex in similar circumstances was treated better, the treatment was because of their sex and that they suffered a detriment as a result.

• Indirect Discrimination - employees must show a policy, criterion, or practice exists which puts people of one sex at a disadvantage, the employee suffered that disadvantage and the policy cannot be objectively justified.

Key takeaway - strong evidence and legal guidance are important to succeed.

Employer defences

Employers facing a discrimination claim may rely on legal defences, such as:

• Genuine Occupational Requirement (GOR) - the job genuinely requires a specific sex (e.g., acting roles).

• Objective Justification - a policy was a proportionate means of achieving a legitimate aim.

• Positive Action - steps to encourage underrepresented groups, where lawful.

• Material Factor Defence - providing a legitimate, nondiscriminatory reason for pay differences.

Remedies and compensation

If a claim is successful, the Employment Tribunal may award:

• Declarations - confirming the claimant’s rights.

• Recommendations - requiring employers to take corrective action.

• Compensation - covering financial losses, injury to feelings, and personal injury. Compensation awards for discrimination are uncapped, making claims potentially costly for employers.

Time limits and procedures

Discrimination claims must be lodged within three months less one day of the discriminatory act. Early conciliation through ACAS is mandatory, with time limits extended during this process.

For tailored advice on sex discrimination, harassment, and workplace equality, contact our experienced employment law team. We provide comprehensive support to help you navigate these sensitive and complex issues effectively.