Sex Discrimination Part 1
The second ‘big’ employment law issue that I will cover in this series of articles is sex discrimination. This generally gets splashed across national newspaper headlines when a victim gets an award that looks more like a lottery win than compensation or when there is saucy evidence more appropriate to the top shelf of newsagents than to a newspaper.
Sexual discrimination was made unlawful by Parliament 30 years ago. Since then what it actually means has been defined and refined by our courts and Parliament.
There are a number of forms that sex discrimination can take; direct and indirect discrimination and harassment are what I will cover today.
Direct discrimination occurs when someone is treated less favourably than a person of the opposite sex. For example, I want to recruit a new secretary. Being a bit stuck in my ways I see this as ‘woman’s work’. A man applies for the job; he is well qualified but I tell him that because he is a man he “wouldn’t do for me”. This is direct sex discrimination and is likely to cost me a lot of money in damages.
It is also direct discrimination to treat a woman badly because she is pregnant or because she takes maternity leave.
Indirect discrimination arises when an employer applies a general rule that applies to everyone, and which may not look like it is discriminatory, but which in practice disadvantages one sex and which cannot be justified.
For example, I’m still looking for a secretary but, having just had to pay out compensation to a man for direct sex discrimination, I think I’ll get a bit smarter. I advertise for a secretary who “will preferably be less than 5’6’ tall”. A man who is 5’10’ tall applies for the job, because he is taller than the height specified in my advert I reject his application. I appoint a woman and feel rather clever with myself until I receive a claim of indirect discrimination. I end up in an Employment Tribunal losing again. Why? There is no sensible reason why my secretary has to be less than 5’6’ tall, fewer men than women are less than 5’6’, a man taller than 5’6 has been disadvantaged by the height limit. This is unlawful sex discrimination and once again I get stung by a big award of compensation.
You may have seen a lot of publicity recently about a new definition of sexual harassment. To be frank it does not really change anything in practice. Examples of harassment are pestering women or men, making unwanted sexual comments or personal comments about a person’s appearance, unwanted gestures or displays of pornographic material.
If you are being harassed at work my advice is complain loudly and if that does not work go to the most senior person in the business and complain to him or her in writing.
The sex discrimination laws do protect both men and women but at the moment most victims are women.
There is no qualifying period of employment, so all employees and even job applicants are protected.
There is no limit on what compensation an Employment Tribunal can award a claimant who has been subjected to sex discrimination.
Claims of sex discrimination are increasing and average awards are going up as employees have a better understanding of their rights. Employers who do not train their staff are frankly gambling, and in my view making a mistake.
Published 27/09/2006.
