Sex Discrimination became unlawful when the
Sex Discrimination Act 1975 came into force. The concept of
Sex Discrimination has been in existence since 1975 which is
30 years. It was subsequently approved and amended by the European
Directives in 2000.
As always when you are looking at law, you
should always look behind at the policy, why was the law created?
The purpose in the Sex Discrimination Act was to protect women
for unlawful discrimination in the workplace.
The Act itself applies equally to both men
and women and there have been occasional cases where men have
successfully proved Sex Discrimination against women, but the
vast majority of cases relate to women being discriminated
against by men.
The Act makes it unlawful to discriminate
against men or women or against a married person of either
sex on the grounds of their sex or marital status.
Discrimination can take three forms. Firstly,
Direct Discrimination. This sort of situation arises when a
person of one sex is treated less favourably than a person
of another sex and the reason for the less favourable treatment
is the person’s sex.
I will give you an example of what I mean
by this :
It was the perception in the 60’s and early
70’s that there were believed to be in industry,
men’s jobs and women jobs. This was old fashioned
and it failed to take account of the ability of both
sexes and was discriminatory. The Act sought to prevent
this happening. There were many examples of cases
where employers would say “women can’t
do this particular job because it is too strenuous
or too difficult etc”. |
If an applicant for a job who happens to
be a woman applies for it and is refused on that basis, this
would be Sex Discrimination. The person who discriminates does
not have to intend to discriminate, they can still discriminate
without the intention. What this means is that because a certain
person may have a hidden prejudice or there may be a hidden
prejudice against one sex to do a particular job or to a job
in a particular way, then if someone makes such a stereotypical
assumption, that in itself can amount to less favourable treatment
on the grounds of sex.
In one case, the owner of a bookshop forbade
women from wearing trousers and obliged them to wear overalls.
The male employees were forbidden to wear t-shirts. A female
employee liked to wear trousers and refused to wear the uniform
skirt. In this particular case, it was deemed not to be Sex
Discrimination. The reason for this was because rules related
to both sexes.
I do however think that the law is changing
in this regard. If for example say women bus drivers or HGV
drivers were restricted by their employer and forced to wear
a uniform skirt, then that itself could amount to direct discrimination
because the uniform itself is impractical to one particular
sex.
Getting in and out of an HGV Cab wearing a skirt is liable
to be embarrassing for a woman.
The essential element on all these issues
is that the treatment is less favourable when viewed objectively
i.e. viewed by a Court to amount to less favourable treatment.
In order to establish Direct Discrimination, the Tribunal has
to compare the treatment of the person claiming discrimination
against the treatment of other members of staff and provided
they are capable of being compared, then using the comparator
system, the Tribunal can determine whether that person has
been treated less favourable and then infer if they are being
treated less favourable the reason for it. If there is no obvious
comparator, the Tribunal have to create a hypothetical one.
Sometimes you get a situation where the employers
recognise that they have treated someone differently and less
favourably and they seek to justify that reason. This is a
little bit more complex because the issue of being treated
differently is admitted but the party says they are justified
in that separate treatment.
I will give you an example of where this
can occur.
Sheila claims Sex Discrimination. She claims that
she has been denied promotion because of her sex.
The employer says
“Yes Sheila has been denied promotion but it
is not because of her sex, it is because of her poor
performance in her current role and in evidence to
justify this, they produce documents to show that
she has been previously warned about her poor performance.
If the Tribunal looked at this and considering the
evidence accepted that the employer took the action
not to promote Sheila because of her poor performance
as opposed to the fact she was a women then her claim
would fail. |
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