Sex discrimination: advice for employers

Sex discrimination, when someone is unfairly disadvantaged in the workplace because of their sex, is unlawful.

The number of employment tribunal claims relating to unfair treatment on the basis of sex confirm that sex discrimination continues to be a problem in the workplace. But preventing sex discrimination should be seen as more than a legal imperative for employers.

Beyond avoiding the cost and hassle of tribunal claims, tackling sex-based discrimination is critical to nurturing a positive employer brand, healthy working culture and equality of opportunity that resonate with existing and potential personnel.

The law on sex discrimination

The Sex Discrimination Act 1975 established legal protection against sex discrimination in the United Kingdom. This was later updated and incorporated into the Equality Act 2010, which is now the primary piece of discrimination legislation.

An individual cannot be discriminated against under the Equality Act 2010 because they are or are not of a particular sex, or if someone believes that a person is of the opposite sex (perceptive discrimination) or if they are associated with a person of a particular sex (associative discrimination).

For the purpose of the Equality Act, ‘sex’ can be defined as male, female, or a group of people such as men or boys, women or girls.

The law protects both women and men from unfair treatment at work due to sex, although the majority of sex discrimination complaints relate to women being disadvantaged.

The 2010 Equality Act aims to protect everyone’s rights in all aspects of their lives. In addition to sex discrimination, the Equality Act protects people against discrimination based on the following “protected characteristics”:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Maternity and pregnancy
• Race, religion, and spirituality
• Sexual orientation

The term ‘sex’ refers to a person’s biological differences, whereas ‘gender’ is commonly understood to refer to social roles based on sex or personal identification. Discrimination due to gender reassignment and transitioning to a different sex is also a protected characteristic under the Equality Act 2010.

Examples of workplace sex discrimination

People are not allowed to discriminate, harass, or victimise another person because they share one or more of the protected characteristics, or because they are perceived to share one or more of these characteristics, or because they associate with someone who shares one or more of the protected characteristics.

This means treating people equally in all aspects of their work in a workplace setting at all stages of the employment lifecycle, from recruitment, during employment and through to the end of employment, including:

• When someone submits an application for a job
• Terms and conditions of employment
• Working arrangements that are flexible and part-time
• Benefits and pay
• Training, development, appraisals and promotions
• Dismissal, retirement, or redundancy
• Providing a verbal or written reference

Types of sex discrimination

The law distinguishes between four types of sex discrimination:

Direct discrimination

This is when someone is treated worse than someone of the opposite sex who is in a similar situation because of their sex, for example promoting a man instead of a woman because of their sex.

Indirect discrimination

This is when an organisation has a policy or way of working that is applied equally to both men and women, but has the effect of disadvantaging a person because of their sex.

For example, if an employer changes shift patterns so that employees leave at 5 p.m. rather than 3 p.m, the change could disproportionately affect female employees negatively, as women are statistically more likely to have childcare responsibilities and have to leave work to collect children from school or childcare.

Indirect discrimination may be permitted if the employer or organisation can demonstrate that the policy is justified. This is referred to as “objective justification.”

Harassment

Sexual harassment involves unwanted conduct of a sexual nature. It refers to someone treating another person in a sexual manner and in a way that makes that person feel humiliated, offended, or degraded. This is referred to as ‘unwanted sexual conduct,’ and it includes both verbal and physical harassment, such as sexual jokes or comments, touching, or assault. The law also covers sending sexually explicit emails, posting pornographic material around the workplace, and sharing this via text or email.

Sex-based harassment involves unwanted conduct that is related to an individual’s sex or the sex of another person. While the conduct is not sexual in nature, it is rooted in sex discrimination. For example, telling derogatory jokes about women in a predominantly male workforce which a female worker finds offensive.

Harassment can never be justified, but if an employer can show that it did everything it could to prevent an employee from behaving in a certain way, a victim of harassment will be unable to file a claim. The victim, on the other hand, could file a claim against the harasser.

Victimisation

This occurs when someone is treated unfairly as a result of filing a sex-related discrimination complaint under the Equality Act 2010. It can also happen to someone who is assisting a victim who has filed a sex discrimination complaint.

Are employers ever allowed to treat employees differently due to sex?

Certain exceptions to the Equality Act allow employers to discriminate on the basis of sex.

Occupational requirements

The law recognises that certain jobs require workers to be a particular sex, usually for reasons of privacy and decency, or jobs that provide personal services. For example, a women’s domestic violence shelter might only hire women. This is known as an ‘occupational requirement’.

To rely on this exception, the employer should show that the measure is ‘reasonable’, taking into account the type of work in question and the genuine need to discriminate based on sex.

Positive action

Positive action can be used to develop or encourage people of a specific sex who are underrepresented or disadvantaged in a role. This could be where, for example, an engineering firm posts a job advertisement for a trainee engineer, emphasising that women are encouraged to apply.

Tips for HR

Employers should conduct thorough reviews of their strategies and working practices to remove bias and unfair discrimination as part of a consistent inclusion, diversity, and employee engagement policy.

What steps can HR take to lead on tackling sex discrimination and promote a positive and inclusive workplace culture?

Policies promoting equality, diversity & inclusion

While employers are not required by law to have a written equality or inclusion policy, it is advisable to have documentation in place which sets out the standards and expectations to be met by all staff, and the consequences of failing to do so.

Employers should make their unequivocal commitment to inclusion in the workplace known. Having an inclusion policy demonstrates that the employer is concerned about their legal and moral responsibilities, and it can also encourage employees to treat others fairly.

With an up to date equality and inclusion policy in place, you are more likely to be able to show you have taken all reasonable steps to prevent discrimination as part of any defence against a sex discrimination claim. If Employers can protect themselves from liability for acts of harassment committed by someone they employ by having a comprehensive policy with relevant training. 

To ensure fairness and legal compliance, all workplace policies and procedures, such as flexible working and dress codes as well as employment terms and conditions of employment, should be reviewed regularly to ensure continued support of sex-based equality and removal of any potential areas of sex discrimination.

Workforce training

All staff should be trained on how to avoid all forms of discrimination and their own personal responsibilities to treat coworkers fairly and with dignity. 

Employers should make it clear that they will not tolerate bullying, harassment, or discrimination. This can be accomplished through practical training and by demonstrating the expected standards of behaviour, demonstrating what constitutes sex discrimination and harassment, and laying out the consequences for violating the codes of conduct.

Managers should also be further trained and supported to ensure that people management practices are implemented fairly and consistently and that, for example, promotion and reward decisions are based on evidence and agreed criteria and are not based on sex or other protected characteristics. Consistent and transparent performance management policies and processes are needed to ensure that all employees, regardless of sex, have equal access to career paths, promotions, and development opportunities.

Open channels of communication

Employees should know the process to report instances of bullying, harassment, or discrimination and that they are comfortable doing so without fear of retaliation.

Equally, managers should be trained on how to handle complaints. Employers have to handle all complaints proactively, quickly, seriously, and compassionately. By ensuring that every line manager understands their role in promoting inclusion and is properly trained, they will be more confident in dealing with any form of inappropriate behaviour and will be better equipped to challenge it.

Equality in recruitment

Recruitment and selection procedures should be fair and should not allow for sex discrimination. When writing job advertisements and descriptions, for example, be careful to avoid discrimination, stereotypical language and images, and seek out candidates from a variety of sources and backgrounds.

Sex discrimination FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.