Many employers may not be aware that certain efforts to brand their business could be seen to discriminate against employees on grounds of their sex.
The right for workers to be protected against discrimination on grounds of their sex in the UK will be governed by the Equality Act 2010 from today (1 October 2010). This replaces the Sex Discrimination Act 1975.
The legislation prohibits employers from:
● Discriminating against employees or job applicants less favourably than others because of sex.
● Discriminating indirectly by applying a provision, criterion or practice to all - the effect of which is to disadvantage job applicants or employees of one sex.
● Subjecting a job applicant or employee to harassment related to sex.
● Victimising a job applicant or employee because they have made or intend to make a sex discrimination complaint.
Direct or indirect discrimination can occur in any of the following circumstances:
● By an employer refusing or deliberately omitting to offer employment to an applicant.
● The terms on which an applicant is offered employment or subsequently engaged.
● The way an employee is afforded access to opportunities for promotion, transfer or training, or is provided with other benefit, facility or service.
● By an employer dismissing an employee.
● By an employer subjecting an employee - or former employee - to any other detriment.
All workplace decisions should be based on merit and personal capability.
By way of an example from recent case law, a 21-year-old male applied for a job as a barman in a hotel and in his interview he was asked if he would be prepared to cut off his ponytail if he got the job. He said that he would be unwilling to do so and the interview was then terminated and he was not offered the job.
He brought a complaint of sex discrimination before an employment tribunal and was awarded £500 compensation for injury to feelings and £66 for loss of earnings. The tribunal decided that a female job candidate would not have been requested to cut her ponytail and his treatment, therefore, amounted to direct sex discrimination.
Indirect discrimination protects individuals from adverse consequences of employers treating men and women in the same way. Here the discriminatory effect is hidden beneath the veneer of equal treatment, for example, a requirement that all candidates for a job be 5ft 10ins or taller would indirectly discriminate against women because statistically they are less likely to be that tall. A height requirement is only likely to be justifiable if the job itself can only safely be carried out by persons of a particular height.
Employers should consider taking the following steps to eradicate sex discrimination:
● Carry out an equality audit to see where improvements could be made to ensure men and women are afforded equal treatment.
● Using the conclusions from the audit, either adapt their current equality policy or create a new policy emphasising the value of equality, how this is to be implemented in the workplace and setting out consequences of breaching the policy.
● Actively promote equality throughout the business, from the recruitment stages, through the process for promotion, and any decisions on termination.
● Consider training to ensure all staff, particularly management and decision-makers, understand the importance of equal treatment.
● Ensure that any complaints of discrimination are taken seriously and investigated, as appropriate, with action taken against anyone found to be in breach of the equality policy. A grievance policy must be in place which clearly states the procedure which employees should take.
● Monitor the effectiveness of policies in place and introduce appropriate updates.
If an employee is successful in bringing a claim for sex discrimination before an employment tribunal there is no set limit on the amount of compensation which can be awarded and it could have negative impacts from a public relations perspective.
Nicola McMahon, Charles Russell