Sexism in the workplace, notwithstanding legislation introduced over the years in order to eradicate it, still poses a problem. We only need to look back as recently as the Sky Sports debacle to see that sexism is high profile, newsworthy and can come at a substantial cost.
The Equality Act 2010 is the piece of legislation which aims to punish incidents of discrimination in the workplace. Previous sex discrimination legislation – the Equal Pay Act 1970 and the Sex Discrimination Act 1975 have been subsumed into the 2010 Act.
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.
It is sex discrimination in the form of sexual harassment that commonly hits the headlines as in the Sky Sports case where two presenters were heard on more than one occasion discussing women in a derogatory way. The presenters may have claimed that it was merely casual banter but this alone is not a sufficient defence to a claim.
What is important is the effect that any ‘jokey’ comments have on the ‘victim’. If a degrading environment is created, it does not matter how the joke was intended and continued occurrences may result in a sex discrimination claim. It goes without saying that a man or a woman could be the victim of sexual harassment. The harassment provisions were widened by the Equality Act to cover harassment of an employee by a 3rd party e.g. a customer or a supplier in the course of the employee’s employment.
It is therefore essential to create a workplace in which it is clear that such behaviour will not tolerated, by staff or anyone else who enters the work location, and any abuse of the policy will be consistently punished. An equal opportunities policy and, in some cases, managerial training are appropriate ways of getting the message across to staff that discrimination is not acceptable in the organisation.
If an employee wishes to complain about harassment, they would usually raise a grievance which would need to be dealt with under an organisation’s grievance procedure, or personal harassment procedure where there is one. There is also a statutory questionnaire that an employee may send to an employer which asks certain questions about their treatment and the reasons for it. There is no obligation on the employer to complete this questionnaire but a refusal to, or incomplete answers may well go against an employer when the questionnaire is used in evidence at a tribunal.
Where a sex discrimination claim is made to a tribunal, there is no upper cap on the amount of compensation that can be awarded for a successful claim. Under the vicarious liability provisions, where an employer cannot show that it took measures to ensure discrimination does not occur in his workplace, the employer will also be held responsible for compensation for discrimination in respect of a matter of which he had no control or knowledge.
For more information on sexism in the workplace please contact Peninsula’s 24/7 Advice Service on 0844 892 2772.