The Equality Act 2010 brought together legislation which outlawed discrimination by employers against their employees based on several areas, including their gender. However, a 2014 survey found that sex-based claims make up 55% of tribunal cases, up from 38% two years ago. There is no cap on the amount of compensation that a tribunal can award in sex discrimination cases, with the maximum award in 2013-14 being nearly £170,000, so employers need to be aware of common areas which are still tripping them up.
A common area which can catch employers out is indirect sex discrimination; where a policy, criterion or practice (PCP) applies to all workers but has a particular disadvantage on workers of a particular sex. This PCP could be, for example, requiring job applicants to have a set number of years’ experience or training within a set time period. Unless this can be objectively justified by a real business need this will be discriminatory against women as, even in modern times, they are more likely to have career breaks due to childcare responsibilities.
Employers are allowed to take positive action but need to be aware of the difference between positive action and positive discrimination, which is unlawful. Positive action is allowed where a particular group suffers a disadvantage, is disproportionately under represented or has different needs from other gender groups in the workforce. For example, if an employer thinks that women are underrepresented in the workplace they can take steps to encourage women to apply through careful choosing of where they advertise or even writing that applications from women are welcome, however, employers should not give a woman a job when there is a better qualified male applicant because would stray into positive discrimination.
Finally, employers should be aware that sex discrimination applies to men too. Commonly this type of claim has been associated with women but recent cases are showing a trend in men becoming more clued up about their rights under equality laws. Common, but not exclusive, areas where sex discrimination occurs against men are where male employees are sexually harassed, requirements for medical conditions, such as colour blindness, can be discriminatory as statistics show this is more common in men than women and new family friendly rights should apply equally to men, for example, assuming a woman’s right to flexible working request should be favoured over a man’s request is unlawful.
If you need any clarification on this issue then contact the Peninsula Advice Service on 0844 892 2772.