Sex Discrimination

General information on discrimination, including on what to do if you feel you are the victim of discrimination, can be found in the equality at work section of our website. This article will explain the issues relevant to discrimination based on sex, including any relevant specific provisions of the Equality Act 2010.

The Sex Discrimination Act 1975 outlawed discrimination based on gender or marital status. This, along with the Equal Pay Act 1970 which served to try to enforce equality in terms of salary between men and women, and various amendments such as the Sex Discrimination Act 1986 formed the basis for legislation which would later form part of the Equality Act 2010.

Under the Equality Act, sex, marital status, gender reassignment, pregnancy/maternity and sexual orientation are technically all treated as separate protected characteristics, although there is often a degree of overlap between them all. Discrimination on the grounds of any of these characteristics is unlawful.

Employers have a duty to prevent all forms of discrimination, including but not limited to discrimination with regard to levels of pay, recruitment, selection for promotion, and sexual harassment.

Types of discrimination

Legislation divides discrimination in the workplace up into various different categories. Below, brief examples of each type of discrimination related to sex have been listed:

Direct discrimination

If a woman with all the necessary attributes is refused the opportunity for promotion based solely on her gender, then she is the victim of direct sex discrimination.

Indirect discrimination

Any general provision or requirement that disadvantages any particular sex over another is indirectly discriminatory. For example a rule stating that employees must be of a certain height may disadvantage women, and unless the rule can be justified as a proportionate means of achieving a legitimate aim, then it is discriminatory.

Associative discrimination

A man who is discriminated against due to his regular association or social activity with women is a victim of associative discrimination.

Perceptive discrimination

A man is the victim of perceptive discrimination if he is thought to be a woman, and mistreated or treated less favourably due to this false belief.

Victimisation and harassment

Both of these forms of discrimination apply in the same way regardless of the relevant protected characteristic.

Victimisation occurs when an employee is treated unfavourably because they raised or supported a complaint or grievance under the Equality Act 2010.

An employee is being harassed if they are being treated in a manner based on (in this case) their sex, which leads them to feel degraded, humiliated, intimidated or offended, and this is the purpose of such treatment.

Equal pay

One important issue relating to sex discrimination is the issue of pay inequality amongst men and women, generally in favour of men. There is an equality of terms clause in the Equality Act 2010 which entitles any woman to the same working terms and conditions (including pay) as any man in the same position.

A woman who believes she is not receiving equal pay may give to their employer an equal pay question form (replacing the equal pay questionnaire), which includes questions relating to whether or not the employee in question is receiving equal pay, and if not why not. The employer is obliged to answer the questions on the form.

Positive action and occupation requirements 

Provisions of the Equality Act permit employers to take positive action in order to address any existing gender imbalance among their workforce. The provisions of positive action are however relatively complex and as such it is an issue that should be handled with care. 

The only other situation in which an employer may use gender as a criteria for selection during recruitment is if they can demonstrate that there is a genuine occupational requirement for the employee to be of a certain gender. For example, a modelling shoot may require a certain gender, and it could be considered inappropriate for a man to be hired for a bra-fitting service.

General good practice

Employers should do everything within their power to prevent discrimination and eliminate it where it is found. Doing so may involve:

• Reviewing existing policies and amending where necessary to avoid any cases of indirect discrimination
• Educating and training all staff, particularly managers, on all the issues related to sex discrimination to ensure that it does not occur
• Reviewing recruitment practices to eliminate the possibility for discrimination, and apparent gender exclusivity where there is no occupational requirement.

While employers should be making every effort to prevent discrimination, employees themselves should make sure that they are aware of the relevant legislation, so they know what protection they are entitled to, as well as how to raise a complaint when necessary.