Sexism, or sex discrimination, can take many forms in the workplace. The most obvious kind – direct discrimination – occurs when a member of one sex is treated less favourably than a member of the other sex, and the reason for the treatment is on account of their gender. Indirect discrimination refers to the situation where a rule (a ‘provision, criterion or practice’) is applied equally to everyone but that rule puts or would put, for example, a man at a particular disadvantage compared with a woman.
Subjecting a man or woman to a detriment because he/she has done something, or it is believed he/she has or may do something with reference to discrimination legislation is classed as ‘victimisation’, and ‘harassment’ is unwanted conduct related to a person’s sex which has the purpose of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The legislation covering equal pay relates to all the terms under which employees of both sexes work, not just to their hourly rate. In general, the legislation requires employers to ensure that no term of the contract is less favourable to one sex than the other. The only defence to inequality is the existence of a material factor other than the difference of sex and which does not involve indirect sex discrimination. In practical terms, the defence is mainly confined to such things as justifiable service increments, the different geographical location of two similar jobs or the time the work is carried out (e.g. night shift working).
In order to keep on top of the situation, you should conduct a brief assessment of the pay received by your staff and address any differences in pay. There may be completely acceptable reasons for any gender difference but it is important to understand why there is a gap. The following pointers should be followed to ensure there is no unacceptable gender pay gap.
Ensure comprehensive records of pay are kept – employers with 250 or more employees will soon need to publish details on average pay received by their male employees in comparison with their female employees. Maintaining readily accessible data will make this task easier. Employers who do not meet this trigger should nevertheless keep good records of pay information in the event that it is questioned.
Ensure pay/opportunities are based on merit – undertake recruitment and promotion based on who is best for the job and don’t be influenced by unsubstantiated perceptions.
Don’t assume that because roles are different, that they cannot be deemed as ‘like work’ – Where male and female employees perform ‘like work’, there should not be a difference in pay that is not attributable to a material factor. ‘Like work’ does not need to be identical work.
You cannot enforce blanket bans on pay related conversations – An instruction to your employees not to discuss their pay with each other, where the intention of the conversation is to discover whether pay inequality exists, is unenforceable.