Gender discrimination, or sex discrimination as it is better known, is unlawful. Employers should take steps to ensure that there are policies in place to prevent such discrimination. There are times when an employer must be particularly vigilant about adopting fair procedures and those are
- recruiting and selecting employees
- considering pay and awarding pay rises
- selecting employees for training courses and opportunities
- considering who to promote
- instituting fair disciplinary procedures
- dealing with bullying and harassment
There are four possible areas of gender discrimination. Direct discrimination, indirect discrimination, harassment and victimisation. In most circumstances, although much of the legislation is written in terms of discrimination against women, it applies equally to discrimination against men except, of course, to legislation regarding maternity rights.
Direct discrimination describes the situation in which a female employee is treated less favourably than a man and the difference in treatment is on the grounds of her sex.1
Contrastingly, indirect discrimination does not consider whether men and women have been treated differently but considers the case where men and women have been treated equally but the ‘provision, criterion or practice’2 has the effect of disadvantaging women. For example, a policy that no one can work part-time would fall into this category because it is generally accepted by tribunals that women often have more childcare responsibilities and will find it harder to work full-time. However, if an employer can show that the provision, criteria or practice was a proportionate means of achieving a legitimate aim then it will be justified.
Victimisation
Victimisation is when an individual is treated less favourably because they have made a complaint or intend to make a complaint about discrimination or harassment
Harassment
You should not be harassed or bullied because of your sex, your employer must also take steps to prevent your colleagues from treating you differently or with disrespect. For example, inappropriate comments and jokes, lecherous behaviour and unwanted physical contact. It is important to note that an employer is vicariously liable for the acts of his employees in such circumstances.3 Even incidents in the pub after work may constitute harassment and entitle an employee to take her employer to a tribunal.4
In many cases, in order to bring a claim to an employment tribunal you must have been employed for at least a year or even two; but because discrimination can begin even during the selection and interview process no such bar exists for cases of sex discrimination.
When gender discrimination can be justified
In extremely limited circumstances it is acceptable for an employer to restrict recruitment to a particular gender because there is an ‘occupational requirement’. This could be, for example, where decency or privacy demands it, such as a changing room attendant or where the essential nature of the job requires a person of a particular sex such as an actor.