Gender Discrimination in the Workplace

21 October 2020

What is gender discrimination in the UK?

 

Gender discrimination is where an individual experiences unfavourable treatment due to their gender. Gender discrimination is also labelled sex discrimination in the legislation.

The gender discrimination act to be aware of is the Equality Act 2010.

When understanding the concept of gender discrimination, it is important to understand the Equality Act 2010 Act. This act protects against unlawful direct and indirect discrimination.

It also protects against harassment and victimisation for the protected characteristic of ‘sex’.

‘Sex’ refers to being a man or a woman.

 

Gender discrimination in the workplace

 

There are two forms of discrimination. These can apply to both men and women. These types of discrimination are direct and indirect sex discrimination:

 

Direct sex discrimination

 

Direct sex discrimination occurs where a person receives less favourable treatment ‘because of’ sex when compared with others in like-for-like circumstances.

When considering justifying gender discrimination in the workplace, direct discrimination is never justified. No matter how well-intentioned the motive.

 

Indirect sex discrimination

 

Indirect sex discrimination occurs when a provision, criterion, or practise (PCP) applies universally and that PCP:

  • puts, or would put, a group of people of one sex at a particular disadvantage compared to people of the other sex in circumstances. This is where there is no material difference in each case
  • puts, or would put, an individual employee at a disadvantage
  • cannot show a proportionate means of achieving a legitimate aim.

To show that a PCP is a proportionate means of achieving a legitimate aim, the aim itself must be legitimate. It must correspond with a real, objective business need which, if not met, would mean the business would suffer a disadvantage.

 

Harassment

 

The Equality Act 2010 makes three types of ‘sex’ harassment unlawful:

  • harassment where a person experiences unwanted conduct related to sex. This conduct has the intentional purpose, or the unintentional effect, of violating that person’s dignity. Or, creating an intimidating, hostile, degrading, humiliating or offensive environment for them
  • sexual harassment, where a person experiences unwanted conduct of a sexual nature. For example, displaying a pornographic screen saver or telling jokes about sexual intercourse. This has the same ‘purpose’ or ‘effect’ as the first type of harassment
  • subjecting a person to unwanted conduct of a sexual nature or relates to sex, which has the same ‘purpose’ or ‘effect’ as the first type of harassment. The person experiences less favourable treatment because they have submitted to harassment. Or, they have rejected the harassment. For example, a woman is not promoted because she refused to have sex with her male boss.

 

Victimisation

 

Victimisation occurs where an employer subjects an employee to a detriment because that employee carries out a ‘protected act’. Or, the employer believes that the employee has, or may, carry out a protected act.

For example, an employee brings a claim of sexual harassment to an employment tribunal and is poorly treated as a result.

 

Gender discrimination examples

 

To help you better understand gender-based discrimination, here are some examples of where it may occur in the workplace.

 

Example 1

 

Although a woman is the best candidate for a job, she is not offered the position purely because she is female. The employer fears she would constantly experience remarks of an offensive sexual nature. This is within a predominantly male workforce.

This would constitute direct discrimination if the woman can show that a male applicant, actual or hypothetical, and who had, or would have had, the same attributes as her, would receive more favourable treatment in an identical recruitment process.

 

Example 2

 

A female worker has a male partner. It becomes common knowledge that she cannot conceive a child because he may be infertile. She has remarks made to her such as “living with a gunslinger firing blanks” and “if you’re looking for a different bloke, try a first-class seaman”. This would be sexual harassment.

 

Example 3

 

An internal applicant for promotion makes a successful discrimination claim against the employer. This occurs six months before the interviews take place. Although she is the best candidate, she is not offered the job purely because of making the claim (a protected act).

However, another candidate who has not undertaken a protected act receives an offer for the position. The employer’s retaliatory measure is victimisation.

 

Dress code gender discrimination

 

Discrimination can also arise due to the requirements for wearing certain items of clothing at work. For example, requiring female employees to wear high heels without justification. This could constitute indirect discrimination.

To avoid this, you should make sure that any dress code requirements are consistent for all genders.

 

Gender reassignment discrimination

 

The Equality Act 2010 also protects against gender reassignment discrimination. Gender reassignment covers a person who:

  • is proposing to undergo
  • is undergoing
  • or has undergone

The process, or part of the process, to reassign their sex by changing physiological or other attributes of sex.

Under the legislation, the reference for these individuals is a “transsexual person”. They are also protected from direct, indirect, harassment and victimisation discrimination.

 

How to solve gender discrimination in the workplace

 

The first thing you should do is have a clear policy in place outlining what is and is not acceptable behaviour. It should be clearly specified what employees can do, and the process to follow in the event of any accusations.

If an employee does accuse a colleague of sex discrimination, an investigation should occur, conducted by your company. This should occur to fully operate methods of proving gender discrimination.

If these accusations are valid, you should begin full disciplinary proceedings against the perpetrator. This could result in a sanction up to and including dismissal.

Remember that a successful claim for sex discrimination at the employment tribunal can result in an unlimited fine.

 

Proving gender discrimination in the workplace

 

Proving that an employee has experienced gender discrimination helps support discrimination accusations. 

Gathering evidence to prove that gender discrimination occurred doesn’t necessarily need confrontation. Least of all with the perpetrator.

  • Record what happened: simply making a note about the discrimination can be evidence. Record the date, the time, names of those involved and what the ‘protected characteristic’ that was the reason for unfair treatment. This doesn’t mean photo evidence or recordings of discrimination occurring. However, that would be hard evidence. 
  • State how discrimination has affected you: it may seem obvious how gender discrimination makes an employee feel. However, recording multiple effects reinforces how serious discrimination is. These can include emotional damage and hindering promotion opportunities. 
  • Check for witnesses: if there were any witnesses to the discrimination, their word can help confirm an accusation. Requesting for their name so that they can provide back up to an accusation will help.
  • Create physical copies of evidence: if there have been any discriminating messages then print them out. These can include emails, social media messages and texts. Failing this, take screenshots or pictures.

Once an employee has evidence, they can present it to their employer. They can discuss their discrimination with their HR department or manager.

It is wise to include a request for an employer to respond within a specified time. If they do not, an employee can take a claim to an employment tribunal. They will order the employer to reply.

 

Court cases involving gender discrimination

 

Below are some cases where employees have claimed sex discrimination at an employment tribunal.

 

HM Land Registry v McGlue

 

An employee on a career break receives no notice of a voluntary severance scheme. She was then misled by managers over her eligibility for the scheme. She complained of sex discrimination.

It revealed that the policy of excluding those on a career break disadvantaged women as a group. This is because it was far more likely that women would be on such a break than men.

 

Warby v Wunda Group

 

An employee had a disagreement with a manager. The manager raised the issue of her pregnancy and asked her why she had lied about a miscarriage. 

She later brought claims of direct sex discrimination and harassment. She argued that the comments made about her miscarriage related to her pregnancy and, therefore, to her sex.

The conclusion was that the manager had not behaved well and that the accusation he had made was unreasonable. However, as the comments related to the context of alleging the employee was a liar. 

Therefore, the manager could have just as easily raised any other topic to show this, resulting in a rejection of her claim.

 

Handling discrimination in the workplace

 

Navigating gender discrimination and trying to prevent it can be a tough task. Without proper management, it can result in company crippling occurrences, such as tribunals.

Peninsula helps with HR assistance, ranging from 24-hour advice on HR mediation to legal counsel for expenses.

Get in touch with our team of specialists today to see how we can help you.

Suggested Resources