Could your business unwittingly be the backdrop for the next high-profile sex discrimination case, asks Tina Chander?
Sex discrimination in the workplace can occur in many different forms and despite businesses acknowledging the issue, high-profile cases continue to spring up in the media.
In a recent case, a senior banker at one of the world’s biggest firms successfully argued she’d been subjected to years of gender discrimination, which included earning significantly less than male colleagues in the same role. The tribunal ruled in her favour relating to claims of unequal pay, sex discrimination and victimisation: she was awarded £4 million compensation as a result.
What is sex discrimination?
Under the Equality Act (2010), sex is a protected characteristic and cannot be used as a basis to treat an individual differently. There are four main types of sex discrimination, known as direct, indirect, harassment and victimisation, all of which relate to different types of offending behaviour,
both intentional and unintentional. Essentially, treating a colleague or employee unfairly because of their sex could land you and your organisation in hot water, leaving you vulnerable to costly and damaging claims.
Direct or indirect?
If your business introduces a policy or act that treats someone differently due to their sex, then you risk being accused of direct sex discrimination. The Equality Act also forbids positive discrimination, so hiring women purely because there are a disproportionate number of men is not permitted either. Indirect sex discrimination can be more difficult to prove and is defined as a policy or act that inadvertently disadvantages somebody because of their sex. However, if an employer can show there’s an ‘objective justification’ and a reason why the policy cannot be adjusted to remove the unintentional disadvantage, then it can be permitted.
Harassment and victimisation
Harassment is split into three categories and is arguably the most well-known type of sex discrimination due to the media attention these cases tend to attract. The first category applies to all protected characteristics, and relates to unwanted conduct that causes offence, distress or humiliation, for example, making derogatory stereotypes about a female colleague’s abilities. Sexual harassment is the second category, which is when someone acts in a sexual way that causes an environment offence, distress or humiliation. The final category for harassment relates to when someone is treated unfairly, because they refuse to accept unwanted sexual advances or harassment. Victimisation makes up the fourth type of sex discrimination and relates to when an individual has been treated unfairly after making a complaint to senior management.
Addressing the situation
Eliminating sex discrimination in the workplace may seem like a straightforward task, but it’s always best practice to remind workers of what the law states. Any behaviour that disrupts the working environment and makes people feel uncomfortable is not permissible, regardless of whether the offending behaviour was intended as ‘banter’ or ‘just a joke’.
The impact of the conduct, determined by how the victim feels, is generally what takes precedence during a claim – even harmless nicknames or light-hearted teasing can qualify as discrimination based on sex.
Whether a claimant’s response and feelings are proportionate and reasonable are considered in cases of harassment, but it’s important to remind colleagues that not everyone shares the same sense of humour.
Protecting your business and employees…
The issue of sex discrimination has been ongoing for years, but businesses still face accusations of direct or indirect discrimination, despite the growing awareness. It’s important to remind colleagues that incidents do not have to be intentional to be illegal, as workplace ‘banter’ can cross the line and create an uncomfortable working environment.
As a Partner at Wright Hassall, Tina’s expertise lies in contentious and non-contentious employment law issues. She acts for employers of all sizes, advising on all aspects of employment tribunal proceedings and appeals.