SEX DISCRIMINATION

A guide on sex discrimination from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you would like urgent advice on discrimination, please contact us as soon as possible.

What is unlawful discrimination?

The Equality Act 2010 (EqA) prohibits discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services for a protected characteristic (ie age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation).

The EqA protects employees, workers (ie engaged under a contract personally to execute work or labour) and contractors (ie whose labour is supplied by an employer to another person). These rights apply whatever the length of service and whatever hours worked.

Legal protection against unlawful discrimination applies even if some of the work is to be done outside Great Britain but will not apply if the work is to be done wholly outside Great Britain. It applies before, during and after employment.

For the purposes of this web page we use the term employee.

What is sex discrimination?

Sex is defined in the EqA as an employee’s gender.

The EqA prohibits discrimination in all public authority functions not covered by the EqA, with only limited exceptions. There is a general duty on specified public authorities to work towards the elimination of unlawful discrimination and to promote equality of opportunity and good relations between persons of different racial groups in carrying out their functions. The general duty is supported by specific duties, which are only enforceable by the Equality and Human Rights Commission.

What types of sex discrimination are there?

Sex discrimination can be:

• direct discrimination
• indirect discrimination
• harassment
• sexual harassment
• victimisation.

What is direct sex discrimination?

An employer (or other person) discriminates against an employee under section 13 of the EqA, if:

• because of an employee's sex
• the employer (or other person) treats the employee less favourably than the employer (or other person) treats or would treat others.

Less favourable treatment means a detriment of a kind that a reasonable person would or might take the view that in all the circumstances you have been disadvantaged.

An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.

In claiming direct sex discrimination, an employee will need to prove that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs.

For the purposes of establishing direct sex discrimination, it does not matter whether the employee is of a particular sex, as discrimination can be:

• by perception
• by association. 

Examples of direct sex discrimination

• a female employee is denied promotion as she told her employer that she was considering having a baby
• an employee is treated less favourably because the employee is perceived to be a man when she is actually a woman
• a employer treats a male employee less favourably because the employee’s spouse is a man.

Direct sex discrimination will also occur if an employer instructs, causes or induces another to commit discrimination. It will also commit an infringement if it causes detriment to an employee because eg they refuse to obey an instruction to act in a way that would disadvantage employees of a particular sex.

What is indirect age discrimination?

Indirect sex discrimination occurs under section 19 of the EqA where:

• an employer applies to an employee a provision, criterion or practice (PCP)
• the employee has a protected characteristic
• the employer applies (or would apply) that PCP to persons who do not have that protected characteristic
• the PCP puts or would put the employee at a particular disadvantage when compared to other persons without that protected characteristic
• the employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

In other words, indirect sex discrimination occurs where the employee’s employment is subject to an unjustified condition which because of their sex, the employee finds it more difficult to meet.

In determining whether there has been a detriment, it will be necessary to establish a pool of employees for comparison on a like-for-like basis of those that have and have not been affected by the PCP.

Example of indirect sex discrimination

• an employer organises a work event in the evening knowing a female employee has small children and cannot attend as it is generally accepted as woman are the primary carers of children.

The Equality Act 2010 (Amendment) Regulations 2023, a new provision of indirect associative discrimination has been introduced under section 19A of the EqA. The same provisions for ordinary indirect discrimination apply but extend to an employee who does not share a protected characteristic with a group that is placed at a particular disadvantage arising from the PCP, but who nonetheless suffers together with that group.

What is harassment related to sex?

Harassment related to sex occurs under section 26 of the EqA during the course of employment if the conduct is unwanted and has the purpose or effect of:

• violating an employee's dignity or
• creating an intimidating, hostile, degrading, humiliating or offensive environment.

Such conduct will only amount to harassment if in all the circumstances, the perception of the conduct is reasonably considered to have that purpose or effect. A one-off act can amount to harassment.

What is sexual harassment?

Sexual harassment is prohibited under section 26 of the EqA and occurs when an employee is subjected to unwanted conduct of a sexual nature which has the purpose or the effect of:

• violating the person’s dignity, or
• creating an intimidating, hostile, degrading, humiliating or offensive environment.

Unwanted conduct that has one of these effects can be harassment even if the effect was not intended. A single one-off event or a series of incidents can amount to sexual harassment. An employee can be affected by sexual harassment even if the conduct is not targeted at them.

Anyone can be a victim of sexual harassment, regardless of their sex, sexual orientation or gender identity or that of the harasser. Sexual harassment may also occur between people of the same sex.

Sexual harassment is often a manifestation of power relationships and frequently occurs within unequal relationships in the workplace (eg between a manager and a subordinate). It frequently arises as the result of sexism and power inequalities between women and men. Any kind of sexual harassment can create a hostile workplace.

What is victimisation?

Victimisation occurs under section 27 of the EqA when an employee is treated less favourably than another person whose circumstances are the same because they:

• brought claim under the EqA
• gave evidence or information in connection with a claim under the EqA
• did any other thing for the purposes of or in connection with the EqA
• alleged that your employer or another person has committed an act that contravenes the EqA.

Justification for sex discrimination

There will be no indirect sex discrimination if an employer’s actions are justified.

To establish justification, an employer will need to show that there is a legitimate aim (ie a real business need) and that the PCP is proportionate to that aim. 

Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of the employer.

Liability for sex discrimination

An employer will be vicariously liable for the acts of its employees and workers for sex discrimination unless it can show it took reasonably practical steps to prevent it from happening.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

Why choose Marjon Law for sex discrimination advice and representation?

We have been involved directly and indirectly with hundreds of employment tribunal claims for clients for over 20 years, many of which involved workplace discrimination.

As specialist employment lawyers, our clients' interests are paramount to us. 

We ensure that all our clients receive the best advice possible.

We will advise on workplace discrimination and represent you in any subsequent employment tribunal claim.

Contact us today ...