Equal opportunities (2): Sex and sexual discrimination

Sex discrimination

Two laws aim to make sure that men and women are treated equally:

• The Sex Discrimination Act 1975 (as amended 1986) makes it unlawful to discriminate against men or against women in employment, education, housing or providing goods and services, and also in advertisements for these things. It’s also against the law, but only in work-related matters, to discriminate against someone because they are married.
• The Equal Pay Act 1970 (as amended 1984) says that women must be paid the same as men when they are doing the same (or broadly similar) work, work rated as equivalent under a job evaluation scheme, or work of equal value. European law also says that women and men should receive equal pay for equal work. For more about this, see ‘Equal pay’.

Applying for a job

The Sex Discrimination Act makes it unlawful for an employer, when filling a job vacancy, to discriminate because of your sex or because you’re married. The law covers three areas:

When deciding who should be offered the job. This includes the job description, the ‘person specification’ (the description of the skills, experience and qualifications needed to do the job), the application form, the short-listing process, interviewing and final selection.

The terms and conditions of the job, such as pay, holidays or working conditions.

Deliberately not considering your application.

The law covers contract and part-time workers as well as full-time or permanent staff.

An example of direct sex discrimination would be refusing to consider you for a job just because you are a woman or because you are a man (for example – refusing to consider a man for a job as a secretary).

An example of indirect sex discrimination would be saying, without good reason, that everyone applying for a job must have been in the armed forces. Because fewer women than men have been in the armed forces, a woman would be less likely to get the job.

Treating a married person less favourably than a single person of the same sex is also unlawful under the Sex Discrimination Act. It would be ‘direct marriage discrimination’ if an employer refused to employ a married woman just because they thought she would be more likely than a single woman to leave to have a baby.

‘Indirect marriage discrimination’ could happen if, for example, an employer said that everyone applying for a job must move to a new location, unless the employer could show that moving was essential to the job.

When an employer is allowed to discriminate

In some cases employers are allowed to offer a job only to men, or only to women. This is called a ‘genuine occupational qualification’ (GOQ). The main cases where an employer may do this are:

• for privacy and decency: for example, employing a male care assistant because he has to help men dress or use the toilet;
• for personal welfare services: for example, employing women counsellors for a women’s welfare charity;
• where the employee has to live on work premises and there aren’t separate sleeping areas for men and women;
• for some jobs in single-sex institutions, such as hospitals and prisons;
• for some jobs in private homes, such as a live-in carer;
• where the job has a real physical need, such as to model women’s clothing, or for a role in a play or other performance;
• in some cases, where the job is outside the UK; and
• where the job requires a married couple.

However, an employer may not, for example, use a need for strength or stamina in a job as a reason for not looking at applications from women.

Being dismissed or made redundant

An employer may not discriminate against women or men when dismissing people or making them redundant. This means that, for example, it would be against discrimination laws to:

• dismiss a man if he took time off work to care for a sick child, if a woman wouldn’t have been dismissed for the same reason;
• dismiss someone for often being late for work if someone of the opposite sex who was late just as often was not dismissed; or
• have a company policy which says that staff with the shortest length of service are to be the first in line for redundancy, because women are more likely to have taken a career break for family reasons.

For more information about your rights if you are dismissed, or facing redundancy, see the Community Legal Service Direct leaflet, ‘Employment’.

Having a child

It is against the law for an employer to treat a woman unfavourably because she is pregnant or has taken maternity leave; for example, if she is:

• dismissed or made redundant;
• refused promotion;
• moved to a less rewarding job when she comes back to work after having a baby; or
• treated differently in some other way.

It may also breach discrimination laws if a woman is treated unfavourably because she needs to care for her child – for example, if a breast-feeding mother was told she could come back to work only if she worked fixed full-time hours. The employer would have to show that she really needed to work full-time and that, for example, she could not do part of her job at home.

Equal pay

The Equal Pay Act allows you to claim equal pay for work which is the same or broadly similar (known as ‘like work’) to that done by someone of the opposite sex working for the same employer (known as the ‘comparator’). It also allows you to claim equal pay if the work is quite different, but is of ‘equal value’ to the comparator’s job in terms of the demands on you or if your work has been rated the same under a job evaluation scheme.

The Equal Pay Act also covers most other terms of your employment, for example:

• working hours;
• holidays;
• sick pay; and
• pensions.

Most equal-pay complaints are by women, but the law also applies to men who are paid less than women for equal work. If you believe you are not being paid the same as someone else of the opposite sex for equal work, you should first take up your complaint with your employer through their grievance procedure (if they have one).

If that doesn’t work, you can take an equal-pay claim to an employment tribunal. If the jobs being compared are fairly similar, it is usually best to make a ‘like-work’ claim as well as an ‘equal-value’ claim. The tribunal will examine your like-work claim first and, if that fails, it will go on to consider the equal-value claim.

Making a ‘like-work’ or ‘equal-value’ claim can be complicated. Even if the tribunal decides that you are doing like-work or equal-value work, the employer may be able to convince them that there is a ‘material factor’ (a good reason other than your sex) why you are paid less. You can get more details and advice about the process from the Equal Opportunities Commission (see ‘Further help’).

You can get advice and support about taking a claim from your union, if you have one, or from a law centre, Citizens Advice Bureau or solicitor (see ‘Further help’).

Part-time work

The Sex Discrimination Act and the Equal Pay Act cover all workers, including people who work:

• part-time; or
• on casual or temporary contracts.

In an equal-pay claim, a part-time job can be compared with a similar full-time job on a pro-rata basis (that is, based on the number of hours each of you works).

Because most part-time workers are women, if they are treated worse than full-time workers this could amount to indirect discrimination under the Sex Discrimination Act. You may have a claim for indirect discrimination if you want to work part-time (or flexitime, at home or in a job-share) because, for example, you need to care for a child, and your employer refuses without a good reason.

Part-time workers are also protected by the Part-Time Workers Regulations 2000, which give them the right to the same pro-rata contractual benefits (rates of pay and holidays, for example) as full-time workers doing the same work. Similar rights apply to workers with fixed-term contracts under the Fixed-Term Employee Regulations 2002. In both these cases, it doesn’t matter whether the workers being compared are the same sex or not. For more on this, see the Community Legal Service Direct leaflet, ‘Employment’.

Sexual harassment at work

The Sex Discrimination Act also protects you against harassment in employment and work-related training. Harassment is unwanted behaviour that:

• violates your dignity (is humiliating); or
• creates an intimidating, hostile, degrading, humiliating or offensive environment at work.

The harassment may be because of your sex or it may be sexual in nature. This could include:

• comments about the way you look;
• indecent (offensive) remarks; or
• requests for sex (perhaps in return for a promotion or other benefit).

Harassment does not have to be deliberate to be unlawful. Whether unintentional harassment is unlawful will depend on whether what happened could reasonably be considered to have caused offence.

It is also unlawful for your employer to treat you unfavourably because you have been harassed or tried to stop someone harassing you. For example, your employer would be breaking the law if they refused you a promotion because you had objected to someone commenting about your appearance or because you had been harassed.

If someone is harassing you and they don’t stop when you ask them to (or if you are afraid to confront them), you should tell your employer – unless, of course, the employer is the person doing it.

The law says that employers are responsible for discrimination by their employees. Many employers treat sexual harassment by their staff as a disciplinary offence, and they should discipline the person harassing you. If your employer does not do anything, you can take a claim against them to an employment tribunal. In many cases you could also take the person harassing you, or your employer, to court.

You could also go to court if you’re sexually harassed by someone unconnected with your workplace. But in some cases there may be a special complaints procedure to follow (for example, if the person who has harassed you was a doctor). You should get expert legal advice (see ‘Further help’).

If you are having a relationship with someone at work

Some employers won’t employ:

• the husband or wife;
• the partner; or
• a relative;

of someone working for them.

Also, some employers don’t allow workplace ‘affairs’. Employers are not breaking the Sex Discrimination Act in doing this as long as they treat men, women, married and unmarried staff equally. Otherwise it could be considered discrimination. An example of discrimination is if a woman was transferred to another office or department when she didn’t want to be, because she was having a relationship at work, when a man would not have been transferred in the same circumstances.

Discrimination or victimisation after leaving your job

An employer must not discriminate against or victimise you after you have left your job. For example, it is unlawful for your employer to refuse to give you a reference because you made a complaint about being discriminated against while you were employed.

If you are buying or renting a house or flat

It is illegal to discriminate against someone because of their sex when selling or letting a house or flat. It is also illegal for a landlord to treat tenants differently because of their sex. However, the Sex Discrimination Act doesn’t apply if the landlord (or a close relative of theirs) lives in the same building and shares some of the living areas (including a kitchen or bathroom, but not a hall or stairway) with the tenant.

It’s also illegal for a bank or building society to treat someone less favourably in granting a loan because of their sex or because they are pregnant. If, for example, a couple apply for a joint mortgage and the woman earns more than the man, then the lender must use the woman’s income as the higher one in working out how much they will lend. And offering mortgages only to people who work full-time is also seen as discrimination, because more women than men work part-time.

Going to school or university

Mixed-sex schools, colleges, adult education centres and universities must not discriminate against parents or children because of their sex. For example, careers advisors must provide advice and help in the same way to boys as girls. Single-sex schools must not restrict the types of subjects they teach just because they have only boys or only girls as pupils. Schools and colleges must also deal with sexual harassment in the same way that employers do (see ‘Sexual harassment’).

If you feel your child is facing sex discrimination at school, you should first try to discuss the problem with the teacher or head teacher. If that doesn’t work, you should complain to the school governors or the local education authority.

For advice about dealing with this kind of problem, contact the Equal Opportunities Commission or the Advisory Centre for Education (see ‘Further help’ for details). For more information about legal rights at school, see the Community Legal Service Direct leaflet, ‘Education’.

Buying and using goods and services

Under the Sex Discrimination Act it is against the law for businesses to discriminate against men or women in the ‘goods, facilities and services’ they provide. This means refusing a service or deliberately not providing it on the same terms and of the same quality. It covers things that are free or paid for, and applies to:

• shops;
• public places, such as hotels, restaurants, bars, nightclubs and leisure centres (for example, offering only to women free or cheaper admission or drinks would be a breach of the Sex Discrimination Act);
• bank accounts, loans, credit cards and insurance;
• travel and transport services that are public or offered by private companies or travel agents; and
• services supplied by local authorities (such as leisure services).

There are several situations where discrimination against men or women may be allowed:

• private members’ clubs;
• services that are only for men or only for women, to avoid ‘serious embarrassment’ (for example, women-only saunas);
• voluntary organisations, care homes and charities that provide services only for men or only for women; and
• insurance policies where it can be shown that women are a better or a worse insurance risk than men (though this is being reviewed, and may not be allowed in the future).

Transgender people

If you have had ‘gender reassignment’ (often called a sex change), you have some legal protection against discrimination. The Sex Discrimination Act protects transgender people against discrimination and harassment in employment and work training. But the Act doesn’t cover housing, education or services.

The Act covers anyone who is about to go through, is going through, or has gone through gender reassignment. If you are discriminated against for one of these reasons, you will have a claim under the Sex Discrimination Act. Employers should not discriminate when choosing people for a job or for dismissal. Also, for example, an employer should allow you time off work for necessary medical treatment in the same way they would for other kinds of necessary medical treatment. They should take action if you are harassed by other employees because of your gender reassignment.

The Equal Opportunities Commission has a guide, ‘Sex Equality and Transexualism’, which deals in detail with this kind of discrimination, including examples of case decisions.

Discrimination because you are gay or lesbian

Under the Employment Equality (Sexual Orientation) Regulations 2003, it is unlawful to discriminate against you at work because of your sexual orientation or sexual preference. The regulations also cover work-related training.

The regulations say it is unlawful to discriminate against you because you are (or people think you are) gay, lesbian, heterosexual or. This includes:

• deciding not to employ you;
• dismissing you;
• giving you worse terms and conditions at work;
• not giving you training or a promotion; and
• not giving you the same benefits that people of a different sexual orientation have (unless the benefits are only relevant to married people).

The law on equality talks about two types of discrimination:

• Direct discrimination, which is when you are treated less favourably simply because of your sexual orientation. An example would be rejecting you for a promotion because you are lesbian, even though you have the skills and experience needed.
• Indirect discrimination, which can happen where there are policies or practices that apply to everyone but affect one group of people more than others, without there being a good reason. An example of indirect discrimination would be where an employer needs two people to manage a restaurant and advertises for a husband-and-wife team. This may discriminate against lesbian or gay couples.

Also, an employer may not discriminate or victimise you after you have left your job.

Benefits for same-sex partners

If an employer gives benefits, such as insurance or private health care, to heterosexual unmarried partners, then refusing to give the same benefits to same-sex partners would be discrimination.

Employers do not have to provide benefits that are specially for married couples to gay couples. Yet both kinds of couple should get the same parental or adoption leave, if they are entitled to it.

Time off to deal with emergencies

Under the Employment Rights Act 1996, you are entitled to unpaid leave to deal with unexpected or sudden problems concerning close family members, or people who depend on you. This includes a same-sex partner.

When an employer is allowed to discriminate

In some circumstances, an employer is allowed to discriminate if it is a ‘genuine occupational requirement’ that the jobholder must be of a particular sexual orientation. For example, in some cases, it may be lawful for an organisation providing welfare services to lesbian, gay and bisexual people to insist on some workers being of a particular sexual orientation.

It is important that each post is considered separately. An employer may not claim a genuine occupational requirement unless the work must be done by someone of a particular sexual orientation, not just because the employer would prefer it.

Also, an employer may not claim a genuine occupational requirement if they already have enough employees who can do those parts of the job that need someone with a particular sexual orientation. For example, if only a small part of the job (say, a job which included providing counselling services to gay or lesbian people) qualifies for a genuine occupational requirement, then the work or jobs could be changed so that a genuine occupational requirement is not applied to a particular post.

To make sure it is still valid, a genuine occupational requirement should be looked at each time a post becomes vacant.

Harassment because of your sexual orientation

Harassment is unwanted behaviour that:

• violates your dignity (is humiliating); or
• creates an intimidating, hostile, humiliating or offensive environment at work.

It may be targeted at you because of your sexual orientation or it may be part of the general culture in your workplace which, for example, tolerates anti-gay jokes and teasing. Harassment does not have to be deliberate to be unlawful. Whether unintentional harassment is unlawful will depend on whether what happened could be reasonably considered to have caused offence.

You do not have to be lesbian, gay or bisexual to be harassed at work. For example, you may be heterosexual but people think you are gay, and they often tease and call you nicknames that you find humiliating and upsetting. This is harassment, even though you are not gay.

The regulations also apply even the harassment is of someone else because of their sexuality – for example, if you have a son who is gay, and you are often teased at work about this. This may be harassment even though your sexual orientation is not the subject of the teasing.

Employers may be held responsible for the actions of their staff as well as the staff being individually responsible, unless it can be shown that the employer took all reasonable steps to prevent the harassment.

People with HIV or AIDS

If you have HIV or AIDS, you may face discrimination. Whether or not you are gay, you may have protection under the Disability Discrimination Act. For more information, see the Community Legal Services Direct leaflet ‘Rights for Disabled People’.

Further help

Community Legal Service Direct

Provides free information, help and advice direct to the public on a range of common legal issues.

Call 0845 345 4 345

Speak to a qualified legal adviser about benefits and tax credits, debt, education, housing or employment or find local advice services for other problems.

Click www.clsdirect.org.uk

Find a quality local legal adviser or solicitor and links to other sources of online information and help.

Equal Opportunities Commission

phone: 08456 015 901

www.eoc.org.uk

Advisory Centre for Education (ACE)

For advice on discrimination in schools

Helpline open Monday to Friday 2 to 5pm

phone: 0808 800 5793

www.ace-ed.org.uk

The Advisory, Conciliation and Arbitration Service (ACAS)

To find your nearest public enquiry point

phone: 08457 474747

www.acas.org.uk

Age Concern

phone: 0800 00 99 66

www.ace.org.uk

Employment Tribunal Service

Employment Tribunal enquiry line

08457 95 9775

www.employmenttribunals.gov.uk

The Gender Trust

For transgender people

phone: 0700 0790 347

www.gendertrust.org.uk

Stonewall

For lesbians, gay men and bisexual people

phone: 020 7881 9440

www.stonewall.org.uk

Terrence Higgins Trust

For people living with HIV or AIDS

phone: 0845 1221 200

www.tht.org.uk

Third Age Employment Network

phone: 020 7843 1590

www.taen.org.uk

For the Code of Practice on Age Diversity in Employment, contact the Age Positive Team within the Department for Work and Pensions

phone: 08457 330 360

www.agepositive.gov.uk

This leaflet is published by the Legal Services Commission (LSC). It was written in association with Sara Leslie of LeslieOwen