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Annie Hayes



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Gender equality: Harmony or chaos?


Women now make up nearly half of the UK’s workforce. It is therefore of no surprise that over the last half century there has been considerable developments in equal opportunities legislation but are bosses finally getting to grips with compliance?

Employees are already protected against discrimination on the grounds of sex by the Sex Discrimination Act 1975 (SDA) and the Equal Pay Act 1970 (EPA).

Equal treatment is within the scope of the European Union and therefore UK legislation must, as far as possible, be consistent with EU directives. The Equal Treatment Directive 2002/73 (ETD) which strengthens the principle of equal treatment had to be implemented by Member States by 5 October 2005.

The Employment Equality (Sex Discrimination) Regulations 2005 just fell within this deadline, coming into force on 1 October 2005.

Since the SDA already satisfies the ETD to a large extent the number of changes which needed to be made to the legislation is small, simply clarifying the position that has already arisen by way of case law. This article looks at the main changes and the effect these will have on employers.

Indirect discrimination
Indirect sex discrimination occurs when a policy or practice applies to all employees or applicants for a job which would cause particular disadvantage to one sex as compared to the other. For example, this could apply where there is a change in working hours imposed by the employer or a refusal to allow an employee to work from home.

The revised definition of indirect discrimination attempts to bring the test for indirect discrimination in relation to sex in line with the definition of indirect discrimination relating to race, sexual orientation and religion and belief.

The change in the definition of indirect discrimination means that the emphasis will be on the employer to objectively justify the provision, criteria or practice by showing that it meets a legitimate aim and that it is a proportionate means of meeting that aim.

This is a step towards showing that although statistics can be helpful in ascertaining relative disadvantage, they are not always essential in a sex discrimination claim.

Employment Tribunals should consider whether the provision or practice causes disadvantage to a particular group by looking at all the evidence, including statistics where they are available.

Prior to these amendments, a claim for harassment on the ground of sex and sexual harassment had to be made from case law as it was not explicit in the SDA. The SDA now expressly prohibits harassment on grounds of sex and sexual harassment for the first time. There are now two types of harassment:

  • 1. Harassment “on the grounds of sex” (for example putting crucial equipment on a high shelf which can only be reached by tall people (mainly men)); and

  • 2. Harassment where unwanted conduct of a sexual nature occurs.

In both cases the conduct must be unwanted and have the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

In practice, for many employers this will mean no change since they already have codes of practice to advise staff and management on how to deal with harassment in the workplace.

Maternity and pregnancy:
Less favourable treatment on grounds of pregnancy and maternity leave is already regarded as unlawful discrimination as a result of case law. The UK Courts have fought with the idea of how to deal with pregnant women for a number of years.

Originally the treatment of a pregnant woman was compared with the treatment received by a man on long term sickness. However, the ECJ has made it clear that the approach should be that pregnant women are in a unique position (Webb v EMO Air Cargo (UK) Limited [1995] IRLR 6645).

The changes to the SDA now include a provision which clarifies that discrimination will arise if the woman is discriminated against either on the grounds of her pregnancy or on the grounds that she is exercising or seeking to exercise the statutory right to maternity leave.

The government amended the regulations following consultation so that women who miscarry and therefore have not yet become entitled to maternity leave will also be protected from discrimination.

Sex discrimination questionnaire:
Section 74 of the SDA provides that an individual who thinks that they may have been subject to sex discrimination can obtain information from their employer by means of a questionnaire. At present there is no time limit.

To bring the SDA in line with other strands of legislation a new eight week time limit for the employer to return the questionnaire has been implemented. If an employer takes longer than eight weeks to return the questionnaire or refuses to respond and the complaint goes ahead, the Employment Tribunal can draw an adverse influence.

Therefore, it is then in the Respondent’s interest to reply in the necessary timescale.

The future:
A recent survey by the Equal Opportunities Commission found that fewer than one third of people believe that employers know how to manage pregnancy in the workplace.

It is unlikely that the amendments to the SDA will fundamentally change this view. The best step for employers to become aware of how not to behave in a discriminatory fashion is to establish policies which all parties can submit to.

However, what is clear is that the aim to work towards coherent discrimination legislation across all areas of discrimination (i.e. race, disability, sexual orientation, religion or belief and age) should make rights and obligations easier for individuals and employers to understand.

Amanda Sanders is an associate in the employment team at Norton Rose.

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Annie Hayes


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