How to Avoid Sex Discrimination Claims A guide for employers
Employment disputes can be disruptive, costly, and stressful for everyone involved. Not to mention damaging to business reputations. With no upper limit for compensation awards in discrimination cases, prevention is always better than cure. Employment law compliance is not an option. However, the unfortunate truth is that in many cases, a lack of up-to-date legal advice and knowledge of equality legislation means there are issues to be resolved. Employees can make a discrimination claim based on issues of age, disability, maternity or pregnancy, marriage or civil partnership, race, religion or belief, sex, sexual orientation, or gender reassignment. These categories are called protected characteristics. The term sex is used in place of gender as modern vocabulary uses sex to refer to biological differences, and gender to refer to those behaviours and expectations viewed as masculine or feminine. This guide deals only with sex discrimination claims and has been created to provide business owners, managing directors and HR professionals with some top tips on how best to avoid such claims.
Sex discrimination Sex discrimination is one of the most common workplace discrimination claims heard at employment tribunals, and it is all too easy to fall foul of the law. The Equality Act 2010 makes it unlawful for an employer to discriminate against employees because of their sex whether that employee is a man or a woman. There are four main types of sex discrimination: 1. Direct discrimination Direct discrimination occurs when someone is treated less favourably because of their sex. However, as well as ordinary direct discrimination such as placing a job advert indicating a preferred sex of candidate 1 this also includes discrimination by perception and by association. Perceptive discrimination takes place when an individual is treated adversely because others think they are a particular gender even if they are not. Discrimination by association occurs due to a relationship between an employee and another person of a particular sex. For example, a man can be discriminated against because of his partner s pregnancy. 2. Indirect discrimination Indirect discrimination happens when a workplace rule, process, or practice is applied to all employees, but disadvantages a particular sex. For example, a blanket refusal on all flexible working requests (even if on business grounds) could discriminate against women as they are more likely to be responsible for childcare. Incidentally, refusing all requests from men on the assumption that they are less likely to require such flexibility is also discriminatory. Instead, all requests should be handled consistently. 3. Harassment An employee who suffers unwanted conduct because of their sex, which leads to a distressing, humiliating, or otherwise offensive environment may also be able to make a sex discrimination claim. This includes sexual harassment and situations where employees (or job applicants) have been subject to unfavourable treatment because they have rejected sexual advances or been subject to such harassment. 4. Victimisation This occurs when an employee is treated unfairly because they have made, or supported a complaint about sex discrimination. Demonstrating just how widespread this problem is, Acas - the body devoted to preventing and resolving employment disputes dealt with over 7,000 calls related to sex discrimination in the workplace over the past year. However, there are a number of simple steps that can be taken by employers to significantly reduce the risk of workplace sex discrimination claims. While it is not possible to remove the risk entirely, being able to show any employment tribunal that you have done all you can to avoid potentially discriminatory behaviour can be extremely valuable. While, in some cases, indirect discrimination can be justified, legal advice should always be sought to ensure employers don t fall foul of the law. Before making an indirect discrimination claim, employees (or job applicants) must be able to show that, not only were they disadvantaged, but that the process, rule or practice would also disadvantage other employees of the same sex. 1 Where there is not an occupational requirement for a particular sex
Five things all employers should consider 1. Do you have the right recruitment and selection process and policies in place? Job applicants can bring a claim for sexual discrimination, even if they are unsuccessful in their application. For this reason, it is vital to avoid discriminatory documentation and procedures when hiring new employees. Begin by making sure that you have an equal opportunities policy in place. This will be especially useful should you be subject to a discrimination claim following a recruitment campaign. In addition, ensure that your job adverts, application forms, and interview questions are non-discriminatory. Take legal advice if necessary as it is not always obvious what could constitute discrimination in this context. Likewise, ensure that staff who are responsible for producing job adverts and application forms, and those who carry out job interviews, are thoroughly trained in equal opportunities and the pitfalls of discriminating against job applicants, even if it is unintentional. If you advertise in specific publications, be careful where you place these adverts. For example, where possible, avoid advertising in publications that are typically only read by a particular sex. In addition, ensure that the wording of the adverts is non-discriminatory. Avoid using words which could be held to be discriminatory on the grounds of sex. If you ask applicants to complete an equal opportunities form when applying for a role, do not staple it to the application form. Keep it separate and remove it, prior to the interview taking place. This reduces the risk of the applicant alleging that the interviewer discriminated against them based on the information they put on the form. It is advisable to make clear on the equal opportunities form the reason for its inclusion in the recruitment process, as well as the fact it will not be seen by the interviewer. Keep notes of the questions asked and answered during interviews. Ensure that any comments/ opinions of the applicants, particularly if in writing, are not discriminatory. Any documentation used in the recruitment process will be disclosable should the applicant bring a discrimination claim. Finally, ensure that you can justify the reasons why you chose to employ the successful applicant (better qualifications, experience, etc.). If you are subject to a sex discrimination claim your whole recruitment process is likely to come under scrutiny. Consider producing a list of interview questions to ensure consistency and make sure that these questions are non-discriminatory. Think about why you are asking for certain information. If there is no particular reason why you need to know something, you should avoid asking the question. You should be able to justify every question by explaining why it is relevant to the role being applied for. The legal reality is, while an interviewer can ask about responsibilities that might interfere with an employee s attendance at work, you cannot ask questions about marital status, whether a candidate has any children, or if they are planning a family.
2. Have you checked your pay and conditions? Despite the introduction of the Equal Pay Act in 1970, almost half a century later, on average, men still earn more than women. According to official figures, men in the UK receive approximately 14.2% more than their female colleagues, with November 9th marking the point in the year on which the average woman effectively stops being paid compared to the average man. By law, employers must give men and women equal treatment in the terms and conditions of their employment contract if they are employed to do: like work work that is the same or broadly similar work rated as equivalent under a job evaluation study work found to be of equal value in terms of effort, skill or decision making. New legislation will force employers with more than 250 employees to publish information about gender pay discrepancies in their organisations, with a league table ranking large firms by gender pay gap. As well as looking at overall salary disparities, affected employers will also be required to publish bonus information, showing any gap between the average bonus payments paid to men and women over a 12-month period, as well as the proportion of male and female employees that received a bonus. While the first gender pay gap reports will not need to be published until April 2018, the new regulations are likely to come into force on 1 October 2016. As such, employers will be required to have a snapshot of their gender pay gap data prepared for 30 April 2017, and publish their first gender pay report within 12 months of that date. The mandatory reporting of inequalities will increase employers exposure to equal pay and discrimination claims. Therefore, it is vital that businesses conduct a review of their employment contracts and consider undertaking equal pay audits as soon as possible to establish and resolve any areas of risk. Despite the two-year breathing space, to avoid equal pay or discrimination claims, we encourage employers to take proactive steps now to prepare for the legislation and minimise the legal and commercial risks to their businesses. In addition to pay and bonuses, it is vital that there are no other terms and conditions that disadvantage or exclude people because of their sex, perceived sex, or association with someone of a particular sex. This includes things like being allowed to work flexibly, parental leave or compassionate leave. Despite the latest delay by the government on this issue with female employees now having to wait until 2018 to find out if they are paid less than their male counterparts there are still issues employers need to be aware of before the introduction of the legislation.
3. Is your promotion process discriminatory? When it comes to promotions, employees must not be discriminated against because of their sex, perceived sex, or association with someone of a particular sex. Apart from where there is a justifiable occupational requirement for a particular sex, it is discriminatory to advertise an advancement opportunity only to employees of a particular sex. To ensure you stay on the right side of the law, when offering internal promotions make sure your career advancement process is as sound as your recruitment and selection process. She also claimed that Goldman Sachs had stated that her pregnancy meant that she was no longer considered as a significant long-term player at the bank and further alleged that derogatory comments had been made about her childcare arrangements and she was publicly mocked. The claim settled out of court for an undisclosed amount but not before details of the accusations were widely covered by the media, no doubt causing some reputational damage to Goldman Sachs. The case highlights the challenges that women could face at work and should serve as a warning to employers to take steps to prevent unfavourable treatment of employees due to their pregnancy and maternity leave. It is unlawful to discourage employees from applying for a position because of their sex, or because you believe that their sex (and/or circumstances relating to their sex) will prevent them from doing the job well. It is also unlawful to overlook a candidate for promotion because they have previously made a sex discrimination complaint. When it comes to motherhood, promotion can be a minefield for uninformed employers. Only last year an employment tribunal case involving a senior Goldman Sachs employee hit the headlines as the global investment bank faced accusations of sex and maternity discrimination. In this case, the mother of two claimed that her employer had discriminated against her after she announced her pregnancy. According to reports, she argued that she had been subjected to sexist comments, had been excluded from key meetings, surpassed for promotion in favour of her colleagues, and had bonuses significantly reduced.
4. Do you have adequate training and development policies in place? Employers can fall foul of sex discrimination legislation when offering training and career development opportunities to staff. While, as an employer you have the right to provide training to those who need it, you must be cautious not to take part in unlawful discrimination in the process. For example, don t assume that women would not be interested in out of hours training opportunities because they have childcare responsibilities. Indeed, if timing is an issue, where possible, you should consider making reasonable adjustments to make this more accessible to all to avoid indirect discrimination. If this is not doable, you may need to justify this subsequently. Likewise, employers should ensure that the requirements of flexible workers and part-time staff are also taken into consideration when planning any career-based training, particularly as these employees are more likely to be women. Also, it is unlawful to deny training opportunities to women because they are pregnant, on maternity leave, due to take maternity leave, or on pregnancy- or maternity-related sickness absence. In more severe cases, any employment tribunal is highly unlikely to look favourably on employers who only offer training to a particular sex to make promotion opportunities less likely for the other. 5. Can you justify dismissing an employee? Employers must not dismiss an employee or have them placed at a disadvantage or discriminated against in a redundancy process - because of their sex. Whether this is their actual or perceived sex, or the sex of someone they are associated with. In such situations, even if you think you ve acted reasonably, they could still make a claim against you if they don t agree, or if they believe that the reason you gave for the dismissal or redundancy wasn t genuine. Under the law, employers must not target women because they are mothers, or are about to become mothers. Likewise, they must not target women of child-bearing age because they could become pregnant and take maternity leave. Despite this, a shocking new study of over 3,000 mothers has found that one in five pregnant women and new mothers face discrimination at work. The report, which was commissioned by the Equality and Human Rights Commission (ECHR) found that around one in nine mothers (11%) lost their job as a result of discrimination at work (either through redundancy, dismissal, or being treated so poorly they felt they had no choice but to leave). When faced with a redundancy situation, employers must check that their redundancy selection criteria are not discriminatory. For example, when looking at periods of absence, it should not include pregnancy-related absences, or those related to child care responsibilities. This can be a legally complicated area and professional advice from an expert employment solicitor is highly recommended.
What now? If you find yourself facing a discrimination claim, one of the first things the employment tribunal will check is if you have an equal opportunity policy in place, and whether your managers are adequately trained to enforce it. Under the Equality Act 2010, if an employee s behaviour is found to be discriminatory, your company could be held liable for failing to prevent this discrimination occurring. This is particularly the case if you cannot demonstrate that you have trained your managers in respect of equal opportunities issues. In such circumstances, you are unlikely to persuade a tribunal that you have taken reasonable steps to prevent discrimination in the workplace. Given that damages in such cases are unlimited, all employers should be concerned about the ramifications of failing to provide training to their managers in this area. Linder Myers specialist employment team has come up with a solution. We can offer fixed price training at discounted rates, exploring discrimination from recruitment to dismissal, and everything in between. It will cover all of the protected characteristics, including: Age Disability Gender Reassignment Marriage and Civil Partnership Pregnancy and Maternity Race Religion or Belief Sex Sexual Orientation The training session will usually last half a day, and will include real-life examples and case studies. For more information or to book a training course, please contact Linder Myers today. This guide has been prepared as a general overview. It is for guidance only and should not be considered a substitute for legal advice on the procedure to follow in specific situations. For more information, please seek proper legal advice. T: 0800 042 0700 E: enquiries@lindermyers.co.uk W: www.lindermyers.co.uk EMP-032-0416