Sex Discrimination Act 1975

Transcription

1 Sex Discrimination Act 1975 INTRODUCTION The Sex Discrimination Act 1975 (and its subsequent amendments) makes it unlawful to treat a person less favourably than a member of the other sex. The Act is not limited to preventing discrimination during employment, but also includes education, the provision of goods, facilities and services, and in the disposal or management of premises. This fact sheet will concentrate on those aspects of the Act that affect employment. The Sex Discrimination Act 1975 was implemented at the same time as the Equal Pay Act The Equal Pay Act and the Sex Discrimination Act, together with directives of the European Union dealing with sex discrimination, form a cohesive body of legislation. The Framework Directive for Equal Treatment in Employment and Occupation (2000/78) required member states to legislate further in the area of sexual orientation, religion or belief (implemented on 1 December 2003), and disability and age (to be implemented by December 2006). The Equal Pay Act is concerned with sex discrimination in contractual rights and benefits, i.e. the explicit terms of the contract of employment. The Sex Discrimination Act is concerned with direct and indirect discrimination against: men and women on the grounds of sex; married persons on the grounds of their marital status; men and women on the grounds of gender reassignment; any person on the grounds of victimisation for asserting a statutory right to equality of treatment. The Act covers all employers regardless of their size, and lends protection to all employees including agency workers and vocational trainees. UNLAWFUL SEX DISCRIMINATION Unlawful sex discrimination arises out of the employer s procedures regarding: recruitment and selection for employment; terms on which employment is offered; refusing or omitting to offer employment; providing (or refusing or omitting to provide) access to training, transfer or promotion; dismissal; post-termination discrimination (e.g. the issuing of a misleading reference or the unreasonable refusal to provide a reference); any other detriment (a catch-all within which cases of sexual harassment are usually brought). Discrimination against either a man or a woman on the grounds of sex is prevented equally, although in practice most cases arise out of the adverse treatment of women. A finding of unlawful discrimination may be made even though the employer had no intention to discriminate. DIRECT DISCRIMINATION Direct discrimination occurs when a woman (or man) is, or would be, treated less favourably than a person of the opposite sex in comparable circumstances because of her (or his) sex. Types of direct sex discrimination include sexual harassment and treating a woman adversely because she is pregnant. 1

2 INDIRECT DISCRIMINATION Indirect discrimination occurs when a provision, criterion or practice is applied to both sexes but it adversely affects a larger proportion of one sex than the other, and it is not justifiable, irrespective of sex, to apply it. Examples of this include height restrictions or full time hours requirements. On the other hand, where a provision, criterion or practice is justified irrespective of the sex of the person to whom it is applied then it may not be indirect sex discrimination. VICTIMISATION Victimisation occurs where a person is treated less favourably than other persons would be treated because he or she has, for example, raised a grievance concerning alleged sex discrimination or brought proceedings in the Employment Tribunal or given evidence in such a case. It would not be victimisation, however, if an employee was disciplined for making a false allegation knowingly. HARASSMENT Sexual harassment can be an imprisonable criminal offence, notably under the Protection from Harassment Act The EU has instructed Member States to specifically outlaw sexual harassment at work. New regulations to define sexual harassment are not expected until 1 October It is likely that the definition of sexual harassment to be adopted will follow those already adopted for race and disability: Unwanted conduct that has the purpose or effect of violating the other person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the other person. VICARIOUS LIABILITY Where an employee makes a complaint of harassment or victimisation by a fellow employee, his or her employer may be liable for those discriminatory acts. Therefore, it is essential for the employer to take action to ensure that the organisation s grievance procedure has been followed effectively, and that disciplinary action has been taken against an employee, who has been shown to have harassed or victimised the complainant. OTHER UNLAWFUL ACTS The Sex Discrimination Act makes certain other acts unlawful including: discriminatory advertising; instructing another person to discriminate; putting pressure on someone to discriminate; aiding someone to commit an unlawful discriminatory act. EXCEPTIONS The following exceptions should be noted: The Sex Discrimination Act does not cover employment that is mainly or wholly outside the United Kingdom. It is lawful for special or more favourable treatment to be given to women concerning pregnancy or childbirth. Discrimination may be justified by a genuine occupational qualification for employment in regard to recruitment, promotion, transfer or training. 2

3 GENUINE OCCUPATIONAL QUALIFICATION A person s sex may be a genuine occupational qualification for a post, but every instance should be considered on its own merits and once established, a genuine occupational qualification should not be applied to a whole category of jobs. The Sex Discrimination Act gives the following as reasons for considering a genuine occupational qualification: strength and stamina; authenticity in dramatic performances; decency or privacy, for example where physical contact may be required, or in changing or sanitary facilities; in a private home involving physical or social contact, or intimate knowledge of a person s private affairs; where sleeping accommodation is necessarily provided on the work premises and separate facilities cannot be provided reasonably for men and women; the provision of education, welfare or personal services in a hospital, prison or care home. THE EQUAL OPPORTUNITIES COMMISSION The Sex Discrimination Act in 1975 established the Equal Opportunities Commission as an independent statutory body with the following powers: To work towards the elimination of discrimination on the grounds of sex or marriage. To promote equality of opportunity for women and men. To keep under review the Sex Discrimination Act and the Equal Pay Act. To provide legal advice and assistance to individuals who believe they have been discriminated against. CODE OF PRACTICE The Equal Opportunities Commission has published a Code of Practice that recommends each employer to establish and use consistent criteria for selection, training, promotion, redundancy and dismissal that are made known to all employees. Without this consistency, decisions can be subjective and leave the way open for unlawful discrimination to occur. The larger the organisation, the more the employer will be expected to do to consult with its employees or their representatives with a view to developing and publishing internal policies and procedures, and to ensure that staff adhere to them. Very small organisations may not have the resources to develop written policies and procedures, but nevertheless they will be required to comply with the Sex Discrimination Act. While the Code of Practice is not in itself the law, if a complaint is made to the Employment Tribunal then the tribunal may take into account any relevant recommendations of the code. THE EOC EQUALITY EXCHANGE The Equal Opportunities Commission has set up the EOC Equality Exchange as a network for the employment community, committed to achieving equal opportunities for women and men in employment. The EOC Equality Exchange has member organisations in England, Scotland and Wales including commercial businesses, public bodies, local authorities, NHS trusts, educational establishments, voluntary organisations, trade unions, training organisations and consultants. 3

4 AN ORGANISATION S EQUAL OPPORTUNITIES POLICY A principal method of demonstrating compliance with the Code of Practice will be for employers to have written and implemented an equal opportunities policy. The Code of Practice recommends that: the policy should be clearly stated and where appropriate, included in a collective agreement; overall responsibility for implementing the policy should rest with senior management; the policy should be made known to all employees and, where reasonably practicable, to all job applicants. The policy should declare that the organisation is committed to equal opportunities in: carrying out recruitment and selection; setting terms and conditions of employment; giving access to opportunities for transfer, promotion and training; dealing with grievances, disciplinary procedures and victimisation; carrying out dismissal and redundancy; minimising any other unfavourable treatment. All employees and management should receive training in the implications of the policy. The policy should clearly set out the organisation s commitment to take disciplinary action up to dismissal, if necessary, against any member of the organisation who discriminates against another, especially with regard to sexual harassment and victimisation. MONITORING THE EFFECTIVENESS OF AN ORGANISATION S POLICY An organisation should make a periodic review of the distribution and payment of employees in each of its parts. The complexity of the review will depend on the size and complexity of the organisation, with very small organisations relying on personal knowledge. In larger organisations regard will be had for differences in the division of men and women and their rates of pay in different units, which may show whether: there is a difference in the frequency of one sex applying for employment or promotion, or that fewer apply than might be expected; there is a significantly lower proportion of one sex applying for training and development; that one sex is concentrated in certain jobs, sections or departments. POSITIVE ACTION The Sex Discrimination Act allows for the encouragement of and special training for applicants where, over a period of 12 months or more, there have been few or even no applicants for particular work from the minority sex. While such assistance can be given to enable applicants to cope with a selection procedure, the actual selection procedure itself for recruitment or promotion must be on merit, irrespective of sex. ENFORCEMENT Claims of sex discrimination may be brought by employees irrespective of their length of service, i.e. those working under a contract of service, or by those under an apprenticeship, or by workers who may be provided by an employment agency. Job applicants (who may not have been offered a position) may also bring a claim. 4

5 INTERNAL GRIEVANCE PROCEDURE All employees in the first instance should be encouraged to use internal procedures to resolve complaints of discrimination, victimisation or harassment. Employers should ensure that anyone raising a grievance does not receive less favourable treatment, thereby compounding any future claim brought to the Employment Tribunal. QUESTIONNAIRE The Equal Opportunities Commission recommends that complainants send a questionnaire to the discriminating person or company (form SD74). Form SD74 must be sent within three months of the date of the alleged discriminatory act or within 21 days of the complainant s application reaching the Employment Tribunal. ARBITRATION Once a formal complaint has been made an Employment Tribunal, ACAS (the Advisory, Conciliation and Arbitration Service) conciliation officers will try to promote a settlement of the dispute without a tribunal hearing. ACAS can also assist in this way without a formal application to a tribunal being made. EMPLOYMENT TRIBUNAL Where there is a complaint of dismissal on grounds of sex, cases can also be brought against the employer under the unfair dismissal provisions of the Employment Rights Act Employment related sex discrimination claims are brought in the Employment Tribunal where strict time limits apply (three months from the act of discrimination). An extension of time may be allowed where it is considered just and equitable. It is not necessary for the complainant to have resigned from their employment or to have been dismissed. Where the alleged discrimination is ongoing, e.g. a series of acts taking place over a lengthy period the time limit will run from the final act of discrimination. BURDEN OF PROOF A complainant must first establish before a court or tribunal facts from which it may be presumed that there has been direct or indirect discrimination. Once the complainant has established the relevant facts, the employer then has to prove that discrimination has not occurred. PRESSURE TO DISCRIMINATE The Equal Opportunities Commission can take legal action where someone unlawfully instructs, induces or attempts to induce another person or organisation to discriminate. REMEDIES Possible remedies where the Employment Tribunal finds that there has been sex discrimination include: A declaration that unlawful discrimination has occurred. Compensation for financial loss, injury to feelings and injury to health with interest. Note that there is no cap on the compensation for sex discrimination that may be awarded by an employment tribunal. A recommendation that the employer take action that will reduce the effect of discrimination on the complainant. 5

6 FURTHER INFORMATION Equal Opportunities Commission Great Britain Arndale House, Arndale Centre, Manchester M4 3EQ Fax: Tel: Scotland St Stephens House, 279 Bath Street, Glasgow G2 4JL Fax: Equality Commission for Northern Ireland Internet address: Wales Windsor House, Windsor Lane, Cardiff CF10 3GE Fax: Tel: London 36 Broadway, London SW1H 0BH Fax: Tel: Note: The Equality Commission for Northern Ireland is the body responsible for combating all forms of discrimination and promoting equality in Northern Ireland: Equality House, 7-9 Shaftesbury Square, Belfast BT2 7DP information@equalityni.org Fax : Tel: Textphone : Advisory, Conciliation and Arbitration Service Internet address: Manchester Boulton House, Chorlton Street, Manchester M1 3HY; Tel: ; Liverpool Cressington House, 49 St Mary's Road, Garston, Liverpool L19 0NF; Tel: ; EOC Equality Exchange eqex@eoc.org.uk England: Scotland: Wales:

7 This fact sheet is an outline of the position at the time of writing. It offers general guidance only and should not be regarded as a complete or authoritative statement of law. No part of this fact sheet should be copied or transmitted to any third party. If you wish to adapt the fact sheet for your own internal use, you must contact the Helpline before doing so. This fact sheet is not a substitute for accessing the Helpline If you currently subscribe to an insured advisory service through Croner Consulting your insurance for a particular issue covered by this policy could be invalidated if you do not access advice via our Helplines Service and follow such advice in accordance with the terms of your policy. 7