Equality -Sex
EQUALITY ACT 2010 – Sex Discrimination
Sex discrimination applies to both males and females and is unlawful in the provision of goods, facilities and services and also in employment.
All the types of discrimination listed in the Introduction to this section apply to sex.
Direct discrimination is where a person is treated less favourably because she is a woman (or, vice versa, because that person is a man)
Indirect discrimination is where either sex is put at a disadvantage because a requirement or condition is more onerous on one sex than on the other.
Sexual harassment is unwanted conduct, including verbal, non-verbal or physical, that is sexual in nature and has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It is also harassment to treat a customer or employee less favourably because they have rejected or submitted to sexual harassment or harassment related to gender reassignment.
In regard to equal pay and other contractual terms of employment as between men and women, the Act retains the framework that was previously in place. This means that any complaint of discrimination still has to be made by comparison with a real person of the opposite sex in the same employment. However, the Act does allow for a claim of direct pay discrimination to be made even if no real person comparator can be found where, for example, a claimant could show that they would have received better remuneration from the employer if they were of the opposite sex even if there was no-one of the opposite sex doing equal work in the organization.
The Act makes it unlawful for employers to prevent or restrict their staff from having discussions to determine if differences in pay exist that are related to PCs. It also stops employers using pay secrecy clauses that prevent employees discussing their own pay and conceal inequalities.
Where a person thinks that they have not been given equal contractual terms with a colleague of the opposite sex who does equal work they can complete a questions form to help them get information from their employer. The employer should complete the answers form in response to the questions. Guidance on the process and completion of forms can be found on the Government Equality Office (GEO) website.
Employers can be vicariously liable for the acts of their employees should they discriminate against fellow workers on the grounds of sex in the course of employment. It is therefore important that employers take reasonable steps to prevent discrimination at work including having appropriate policies, practices and rules in place and regularly bringing them to the attention of all employees.
Care must be taken when making dress and appearance rules for employees. Dismissal of a man for having long hair or of a woman for wearing trousers can be sexual discrimination in certain circumstances. Men and women must not be treated less favourably because of their sex but less favourably does not mean equally. It is not less favourable to have different dress codes for men and women provided they are comparable and enforced to equal degree.
As to burden of proof in Tribunal cases the onus is on employers to provide satisfactory explanations to re-but claims of sexual discrimination. In the past, employees alleging sex discrimination had to prove their case but now, once facts are put to a Tribunal that infer discrimination, it is for the employer to prove otherwise.
All PBS information sheets are designed to provide the detail you need to implement best business and employment practices. They are not a detailed commentary on the current law and where advice is needed in a specific case you should contact PBS for expert consultation.
Equality/sex