Sex Discrimination
Sex discrimination has been unlawful for nearly 30 years. You would think that employers would know how to behave by now but like an old oil field that never runs out, these laws keep pumping fees into lawyers pockets.
To be fair the laws are complicated and quite often employers find themselves facing a claim by accident. So how can this happen? There are two main forms of discrimination – direct and indirect.
Direct sex discrimination happens when an employer treats a woman less favourably than he would treat a man because she is a woman. So an employer who doesn’t employ a woman because “It’s mans work” is guilty of unlawful direct sex discrimination.
Cases of direct discrimination are relatively rare these days because most employers understand what it means. If a job involves a lot of physical strength employers don’t advertise for a “strong man”, the advert is more likely to read “strong person required”.
Indirect sex discrimination is much harder to understand so here is my laymans definition.
An employer is guilty of indirect discrimination if he does something which prejudices more women than it does men, which cannot be justified and which is to the detriment of the woman who is complaining.
So if I advertise for a secretary “at least 6ft tall” and a well qualified 5’2” lady does not get the job because I give it to a less well qualified 6’1” man (OK so its pretty unlikely to happen!) I am guilty of indirect sex discrimination. This is because firstly much fewer women than men can comply with the height requirement, secondly this requirement is not justifiable – there is no sensible reason why my secretary has to be 6ft tall and thirdly the 5’2” lady has suffered a detriment because she didn’t get the job.
Quite often indirect sex discrimination cases are linked to family responsibilities.
In British Telecommunications -v- Roberts, Mrs Roberts worked for BT full time. She went off on maternity leave. At the end of her maternity leave she did not want to work full time but wanted to job share. BT said no. The Employment Appeal Tribunal said in effect that unless BT could justify their decision that Mrs Roberts’ job had to be done by a full time employee rather than by two job sharers, BT would be guilty of indirect sex discrimination. This is because more women than men look after children therefore fewer women than men can work full time. Unless the need to work full time can be justified, refusing a request for part time working or job sharing made by a mother seeking to come back to work after maternity leave will amount to unlawful sex discrimination.
What does this mean for mothers who want to work after maternity leave but want to work less hours?
Remember you don’t have an automatic right to do this so it is a mistake to be too dogmatic. What you should do is tell your employer what you would like to do, but be as flexible as you can, make suggestions such as job sharing, if you have a job sharing partner in mind tell your employer. Be seen to be as reasonable as you can be.
What does this mean for employers?
Remember you may be guilty of indirect sex discrimination if you cannot justify a refusal to allow a mother to return on a part time basis. Approach a request with an open mind. Do not just assume that it would not work. Discuss the request with the employee, work out whether it could work in practice. If there are really good reasons why it won’t work explain them to the employee, preferably in person, then look at whether there are any other part time jobs that she could do. Do not assume that she wouldn’t be interested in any alternatives, ask her.
The observant reader will have spotted that this article is written with the woman as the victim. The Sex Discrimination Act protects men and women but as things currently stand the vast majority of Claimants are women.
Published 27/09/2006.
