SEX DISCRIMINATION 

Sex discrimination occurs when a person is treated less favourably because of their sex. Both men and women are protected from discrimination on the basis of their sex.  

 

Some of the most common issues include: 

 

The Equal Pay Act 1970 gives employees the right to equal pay for equal work in comparison with the opposite sex. In 2010, the Equality Act came into force and is now the most relevant law.  

 

This applies to people working for the same employer doing jobs that are the same, similar, or equivalent work of equal value, skill, and responsibility. This can also apply to workers at associated companies (such as parent companies or different branches of the same company) or with the same source of payment (for example council workers). It is not always clear which roles are equivalent for these purposes. If you are unsure, get in touch for advice to help determine which roles are equivalent to yours for the purpose of equal pay. 

 

If you believe you are not being paid equally, you can make a claim through the tribunal or the civil courts. If successful, your pay and contract will be improved in line with your colleague, and you may be awarded back pay up to a maximum of six years. The deadline for making a claim to the tribunal is within six months of the employment ending, or up to six years from the breach in the courts. We can help you to understand which type of claim is best in your circumstances.  

 

Organisations of 250 or more people must also report average pay for men and women in the firm, and whether there is a pay gap, and publish the information on their website. Having a pay gap is not necessarily discriminatory, but may point to failings in equality, such as a failure to promote men or women to senior roles, or a culture that particularly causes men or women to leave the organisation. 

Sexual harassment is unwanted conduct of a sexual nature. When it happens at work, it is a form of discrimination under the Equality Act, and the employer may face a claim for vicarious liability. 

 

Sexual harassment could include: 

 

 

Sexual harassment is unlawful whether it is carried out by somebody of the opposite sex or the same sex. 

 

Employers should do everything it can to prevent sexual harassment. If not, the person being harassed may be able to bring a claim against the employer for vicarious liability. They could also be breaching their contract of employment by failing in their duty to protect the wellbeing of their employees. 

 

Harassment (unwanted conduct which creates an intimidating, hostile, degrading, humiliating or offensive environment) in relation to a protected characteristic is also a form of discrimination. Sex-based harassment does not have a sexual nature but is related to the characteristic of sex. For example, telling jokes that generalise all men or women, or using sexist insults. 

In some roles, an employer may require a person of a particular sex for a job. In these cases, it is legal to discriminate by sex if the employer can show that there is a genuine need. For example, a domestic violence shelter for women may specify that they do not employ men, or a prison may need an officer of the same sex as the prisoners who can carry out searches. 

 

 

Some employers may also use ‘positive action’ to improve sex equality. This could include putting statements in job adverts to encourage male or female applicants, offering mentoring and training opportunities, or using sex as a deciding factor where two candidates are equally in every other way. However, this is complicated area, as there can be a thin line between positive action and discrimination. We recommend seeking legal advice about whether certain ‘positive action’ is legal or not.