The Equality Act 2010 (“the EA 2010”) protects employees against discrimination, harassment, and victimisation based on a “protected characteristic”. One protected characteristic is sex. This short article provides an overview of the key concepts in sex discrimination claims.
Direct sex discrimination occurs where an employer treats an employee less favourably than it treats or would treat others, because of the employee’s sex. There are several elements within this concept.
First, the employee must show that the employer treated them less favourably than someone else who was not of the same sex as them, and that they (the employee) are worse off because of it.
Secondly, the employee must show that the treatment was less favourable when compared to a real or hypothetical comparator. A comparator is a person who, but for their sex, is not materially different from the employee.
Thirdly, the less favourable treatment must be “because of sex”. This is often called “the reason why” test; the reason why the employee was treated less favourably must be their sex.
Indirect discrimination occurs where an employer has a provision, criterion or practice (“PCP”) which, on the face of it, applies to everyone regardless of sex, but has the effect of disadvantaging employees of one sex. Indirect discrimination is unlawful whether it is intentional or not, unless the employer can show that the PCP is a proportionate means of achieving a legitimate aim.
Section 26 of the 2010 Act provides that sex harassment occurs where:
- A engages in unwanted conduct related to sex or of a sexual nature; and
- the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading humiliating or offensive environment.
In deciding whether the conduct has the effect or purpose detailed above, the Tribunal will assess:
- the perception of B
- the other circumstances of the case
- whether it is reasonable for the conduct to have that effect
If one employee discriminates against or harasses another, the employer will be vicariously liable unless it has taken reasonable steps to prevent such conduct from taking place. The offending employee may also be liable.
Victimisation occurs where a person subjects another person to a detriment because the victim has done, intends to, or is suspected of:
- bringing proceedings under the EA 2010
- giving evidence or information in connection with proceedings brought under the EA 2010, irrespective of who brought the proceedings
- alleging that the discriminator, or any other person, has contravened the EA 2010
The Act affords no protection if a person makes allegations of sex discrimination which they know to be false. However, a person who complains mistakenly, but in good faith, is protected.
An Employment Tribunal can award one or more of three remedies, if it finds that an individual has been a victim of sex discrimination:
- a declaration, which states what the rights of the parties are
- a recommendation that the employer should take certain steps to remove or reduce the effect of the discrimination.
The time-limit for making a claim for sex discrimination to the Employment Tribunal is three months less one day from the last act of discrimination. A claim that is brought outside of the time-limit may be allowed to proceed, subject to the Tribunal’s discretion, if there is a good reason why the claim was not made in time.
Demstone Chambers are specialist employment law barristers. We are able to help with all employment disputes, including sex discrimination claims, drafting grounds of claim to the Employment Tribunal, advising on settlement offers, and attending Tribunal hearings.