Sex discrimination in the workplace

Examples of sex discrimination

Below are some examples of situations in which you may be subject to sex discrimination:

• Your employer gives a promotion to an equally-qualified male colleague because of her sex rather than because of his skills and/or qualifications – this would constitute direct sex discrimination
• Your employer decides to change shift patterns for staff so that they finish at 5 pm instead of 3pm. Female employees with caring responsibilities could be at a disadvantage if the new shift pattern means they cannot collect their children from school or childcare – this would constitute indirect sex discrimination
• One of your managers makes comments that there is no point promoting women because they “go off to have children”. Even though he doesn’t direct these comments at a particular female colleague of yours, one of your colleagues is very upset by this and worries about her career. This could constitute sex-related harassment
• One of your colleagues puts a pornographic screen saver on his computer. You see this and are offended. This could constitute sexual harassment
• You complain that you have witnessed a colleague being sexually harassed at work by your line manager. Your line manager finds out about your complaint and gives you a poor appraisal because of your complaint, rather than because of your actual performance. This could constitute victimisation
• Your employer fails to deal with a flexible working request properly. This could constitute direct sex discrimination or sex-related harassment

Direct sex discrimination

Direct sex discrimination occurs when you are treated less favourably than your colleagues because you are male or female. To establish direct discrimination, you must show that you have been treated less favourably in some way than your employer has treated a real comparator, or would treat a hypothetical comparator.

The definition of direct discrimination under section 13 Equality Act 2010 is:

Example

A female worker’s appraisal duties are withdrawn while her male colleagues at the same grade continue to carry out appraisals. Although she was not demoted and did not suffer any financial disadvantage, she feels demeaned in the eyes of those she managed and in the eyes of her colleagues. The removal of her appraisal duties may be treating her less favourably than her male colleagues. If the less favourable treatment is because of her sex, this would amount to direct discrimination

Indirect sex discrimination

Under section 19 Equality Act 2010, indirect discrimination occurs when:

Harassment related to sex at work

You are protected against being harassed at work for a reason related to your sex. You may be able to take action about this.

“Harassment” occurs under section 26(1) Equality Act 2010 when:

You can therefore make a claim for harassment related to sex if, for example, you are male and one of your colleagues makes an offensive remark at women at work which violates your dignity or humiliates you.

A female worker has a relationship with her male manager. On seeing her with another male colleague, the manager suspects she is having an affair. As a result, the manager makes her working life difficult by continually criticising her work in an offensive manner. The behaviour is not because of the sex of the female worker, but because of the suspected affair which is related to her sex. This could amount to harassment related to sex

Sexual harassment at work

Sexual harassment is defined under section 26(2) Equality Act 2010 as follows:

The purpose or effect referred to in s.27(1)(b) is conduct which has the purpose or effect of violating your worker’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive  environment for you.

Conduct of “a sexual nature” covers a variety of different types of conduct, including verbal, non-verbal and/or physical contact, which occur in the course of employment. What is “in the course of employment” can sometimes be a grey area – if you’re sexually harassed whilst sitting at your desk in your workplace then it is pretty clear that this is in the course of employment. However, some examples are less clear-cut – what if you’re sexually harassed by a colleague on an evening out with work-mates, for instance? Each case very much depends on its particular facts and circumstances and you should seek expert employment law advice if you think you have been sexually harassed at work.

Example

Male members of staff download pornographic images on to their computers in an office where a woman works. She may make a claim for harassment if she is aware that the images are being downloaded and the effect of this is to create a hostile and humiliating environment for her. In this situation, it is irrelevant that the male members of staff did not have the purpose of upsetting the woman, and that they merely considered the downloading of images as ‘having a laugh’.

Victimisation

It is unlawful for you to be victimized because you have done a “protected act” (i.e. because you have complained of discrimination in any way).

Victimization is defined under section 27 of the Equality Act 2010:

If you are subjected to any detriment because you have brought a claim for sex discrimination (or any other form of discrimination) under the Equality Act 2010, because you have given evidence in any claim for discrimination or, for example, you have made an allegation that your employer has breached the Equality Act 2010, then you may be able to make a claim for victimization to the Employment Tribunal.

Example

A grocery shop worker resigns after making a sexual harassment complaint against the owner. Several weeks later, she tries to make a purchase at the shop but is refused service by the owner because of her complaint. This could amount to victimisation.

The relationship between sex discrimination and pregnancy and maternity discrimination

The Equality Act 2010 states that “special treatment afforded to a woman in connection with pregnancy or childbirth” must generally be disregarded for the purposes of direct sex discrimination. A man cannot therefore normally claim that he has suffered sex discrimination because he has not been accorded the same special treatment as a pregnant woman.

Please read our guide on pregnancy discrimination in the workplace here

Example

A man who is given a warning for being repeatedly late to work in the mornings alleges that he has been treated less favourably than a pregnant woman who has also been repeatedly late for work, but who was not given a warning. The man cannot compare himself to the pregnant woman, because her lateness is related to her morning sickness. The correct comparator in his case would be a non-pregnant woman who was also late for work

Employment Tribunal cases involving sex discrimination

Direct sex discrimination

In Smith v Rees ET/2501040/12, a tribunal found that the treatment of a female employee was less favourable. The employee, a waitress, was given a blouse to wear which she felt was too low, too tight, and showed too much cleavage. She told her employer that she would not be comfortable wearing the blouse and the employer accused her of being a “prude”. She was dismissed, and an employment tribunal upheld her discrimination claim. It concluded that a male employee would not have been required to wear a uniform like that, and that therefore the waitress had been treated less favourably on the grounds of her sex.

Indirect sex discrimination

In Faulkner v Chief Constable of Hampshire Constabulary UKEAT/0505/05, the Employment Appeal Tribunal held that a policy at Hampshire Police Force that police officers in a personal relationship should not work together as supervisor and subordinate was indirect discrimination, but that the policy was objectively justified – it was a proportionate way of meeting the need to manage the risk that undue influence or favouritism would affect the integrity of one or both of the partners in the relationship, or would be perceived to do so

Harassment related to sex

In Nathwani v University of the Arts London ET/2201741/11, an Employment Tribunal held that a female colleague’s behaviour relating to a past relationship between them could amount to conduct “related to” an employee’s sex. In this case Ms Nathwani complained of harassment in relation to the behaviour of her line manager after their personal, sexual relationship had ended. Her former lover’s behaviour included his continued statements about his feelings for the claimant, speaking to M Nathwani’s colleagues about his feelings towards her, and treating her in a “cold manner”. The Employment Tribunal held that Ms Nathwani’s colleague’s behaviour amounted to unwanted conduct relating to Ms Nathwani’s sex. The manager would not have had similar feelings for a man, and nor would he have expressed himself in such a way to a man.

Sexual harassment

In Vickers v Hill Biscuits Ltd & Mr Ravenscroft ET/2405509/2016 the Employment Tribunal held that a manager writing “Lisa it’s your birthday, I bet you’re thrilled to bits, but not as much as I would be if I could feel your TxxS!!!” constituted sexual harassment and awarded the claimant £10,000 in compensation.

Victimisation

In Martin v Devonshires Solicitors UKEAT/0086/10 an employee brought multiple false grievances in good faith, but mistakenly due to her mental illness. The EAT found her subsequent dismissal to be fair and not unlawful victimisation. Features of the complaints which led to the employer’s decision to dismiss, including their serious nature, the number of complaints made, the employee’s failure to accept they were as a result of her mental illness and the time and internal resources taken up dealing with them, were “properly separable” from the protected acts

Action you can take if you think that you’re being discriminated against because of your sex

If you think that you are being discriminated against because of your sex then you should take action as soon as possible. Below are some examples of what you can do:

• Inform your line manager that you believe that you are being discriminated against. Make sure that you put a complaint in writing (preferably by email so that there is a time and date stamp on the complaint and you can prove that it has been sent to the relevant person) and keep a copy. If you think that it is your line manager who is discriminating against you then make a complaint so someone else in a position of authority in your organisation.
• Make a formal complaint (known as a “grievance”) to your HR department and also keep a copy of this
• Obtain specialist advice from a qualified person – you can either consult a lawyer directly or make an appointment with the Citizens Advice Bureau to obtain initial advice
• Collect evidence of the incidents that you think are discriminatory. An important thing to do is to keep a diary of all of the incidents of discrimination that you think that you have suffered and to record exactly who was involved and what happened. Try and obtain any witness evidence that you can from colleagues who have seen or heard things. Keep any letters, emails, minutes of meetings etc. that you think are relevant.

Making an Employment Tribunal claim for sex discrimination

If you want to make an Employment Tribunal claim for sex discrimination then you must do the following:

• Make your claim within three months of the last date of discrimination (this is also known as the “limitation date”). The last date of discrimination can often be difficult to pinpoint so you must be extremely careful that you do not fall outside of the three-month period
• Gather enough evidence to allow you to prove your case in the Tribunal – this includes both documentary evidence and, if applicable, witness evidence.

It’s important to note that (unlike, for example, unfair dismissal claims) you don’t need to have worked for your employer for any particular length of time to make a claim for sex discrimination – you have the right to do this from “day one”.

Until June 2017 you may have had to pay a fee to issue your claim for discrimination (or for a hearing in relation to such) unless you qualified for a fee remission. This rule no longer applies.

What can you do if you’re victimized for making a complaint of sex discrimination?

If you do any of the acts listed below (known as a “protected act”) and are then subjected to any form of detriment or dismissal because you have done so then you may be able to make a claim for “victimization” under the Equality Act. A protected act can include:

• Making or threatening to make an informal or formal complaint about sex discrimination within your organisation
• Helping a colleague to make a complaint or helping them with their Employment Tribunal claim regarding sex discrimination
• Making or threatening to make an Employment Tribunal claim for sex discrimination