Peninsula Team

March 25 2011

Sex is a protected characteristic within the Equality Act 2010 meaning that it is unlawful to treat someone less favourably because of their gender. If someone believes this has happened to them, they can ask a Tribunal to compare what happened to them with what did or would happen to a real or hypothetical comparator of the opposite gender. If the Tribunal agree that the different treatment is because of their gender, it will be classed as sex discrimination. Tribunal awards in discrimination cases can be significant. The legislation also applies where a rule is applied which adversely affects more women than men. An example would be all staff being required to work full time. This would probably mean that more women would suffer because of their responsibilities for child care and so it could be deemed discriminatory unless the employer can show a genuine reason for the rule. We have all heard about the ‘Gender Pay Gap’. The Equality Act 2010 has mainly retained the provisions which were previously in place under The Equal Pay Act. This means that if a man and a woman do the same or similar work, or work rated as of equal value by a Job Evaluation scheme, they should receive the same pay and benefits, unless the employer can demonstrate that the difference is due to a ‘material’ factor that has nothing to do with the employee’s gender. An employee cannot raise an equal pay claim because someone of the same sex is paid more for doing a similar job-they can only compare themselves with someone of a different gender. The Government acknowledges that there are still some jobs where women are not paid the same as men and in such cases the employer should take steps to address the difference. This will not be treated as discrimination against the men affected. So far then, we can see that there are legal frameworks in place to try to ensure that men and women are treated equally at work. There is however one area where this cannot be the case-pregnancy and maternity. Women are protected under the Equality Act 2010 during pregnancy and maternity leave as they cannot suffer any detriment due to their condition. There is also additional protection, under separate regulations, for women made redundant whilst on maternity leave which means that they have a right to any suitable job over and above their colleagues of either sex. This is a rare example of lawful positive discrimination. Also, men cannot bring sex discrimination cases against women who are pregnant or on maternity leave because women receive more favourable treatment during this time. However, to redress the balance a little, from April 2011, mothers and their partners will be able to share maternity leave and pay, subject to certain provisions. The portion of leave taken by the partner is called Additional Paternity Leave. For more information on the issues raised in this editorial, please call our 24 Hour Advice Service on 0844 892 2772.

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