Sex Discrimination Act

Structure: Scope, Issues and Effectiveness

It is unlawful to discriminate against anyone on the grounds of their sex, race, disability or marital status in recruitment, promotion and access to benefits during employment and dismissal. The Sex Discrimination Act 1975 (SDA) and Equal Pay Act 1970 (EPA) are complementary as EPA deals with pay, whilst SDA deals with non-contractual matters. Both these statutes are drafted in terms of a woman who is discriminated against in comparison with a man. Sexual harassment will count as "discrimination" for the purposes of the Sex Discrimination Act if an employee is treated less favourably than others on the grounds of sex and will normally be unlawful under SDA.

The UK or EU/EC legislation does not specifically deal with sexual harassment at the work place. A specific employment law protection comes from the Sex Discrimination Act 1975 and the EC Equal Treatment Directive 76/207 in addition to Criminal and Common law.

Sexual Harassment at work was not specifically dealt with by UK or EU/EC legislation. On the 18^th April 2002 the EU council and parliament accepted a draft new directive which will require member states to specifically outlaw sexual harassment and which inserts a specific definition of sexual harassment into the 1976 Equal Treatment Directive 76/207/EEC. The final date for implementation by member states is 5^th October 2005.

Race Relations Act 1976

The original statute of 1965 is now incorporated in this Act and is intended to be a powerful influence in the attempt to eliminate discrimination on racial grounds. It is much easier to understand what discrimination means as it uses exactly the same definitions of discrimination as the Sex Discrimination Act 1975 although its scope is much broader than employment. The Act defines racial grounds as meaning colour, race, nationality, ethnic or national origins. The term 'nationality' was included to overrule the decision of the House of Lords in Ealing Borough Council v Race Relations Board. In this case it was held that national origins meant race rather than citizenship. In recent changes to the legislation both meanings have been included. The direct evidence of this type of discrimination consisted of inferences drawn from the primary facts available. In King v Great Britain-China Center where Neill L J emphasized the difficulty of finding direct evidence of discrimination and stated that although in some cases the discrimination is not ill intentioned but merely based on the assumption that he or she would not have fitted in to the company. The evidence of difference would be apparent and an employer will be required to provide an explanation for such a difference in treatment of employees. In Noone v North West Thames Regional Health Authority it was said that if there is a finding of discrimination and of difference in race then if the employer fails to give satisfactory explanation for that differentiation then the tribunal is entitled to draw their own inferences that the discrimination was on the grounds of race or sex as the case may be. Dr Noone was born and obtained her initial qualifications in Sri Lanka. Despite superior qualifications, experience and publications than the successful candidate, Dr Noone was not appointed for the post of consultant microbiologist with the authority. On the facts and having regard to the appellant's superior qualifications experience and publications, it was held there was sufficient material to infer discrimination on racial grounds. In British Gas Plc v Sharma the Employment Appeal Tribunal denounced the concept of an evidential burden, which shifts in the course of the case. The tribunal needs to find the primary facts and then draw inferences from it in order to decide whether the applicant has proved his or her case.

In Zafar v Glasgow City Council, the fact that an employer treats an employee unreasonably does not by itself leads to a conclusion that the employer has treated the employee less favourably on racial grounds and a test of hypothetical reasonable employer is irrelevant.

The important difference between direct and indirect discrimination is that in the latter it is possible for the employer to argue that an otherwise discriminatory act is justified by the requirements of the job which cannot be argued in direct discrimination such as sexual harassment. A victimisation occurs when an employee receives less favourable treatment because of the action that person has taken action under SDA or Race Relations Act.

Indirect Discrimination

When employers make the requirements which although applies to all has a disproportionate effect on members of one sex, married people or a particular racial group and has detrimental effect compared with other people and cannot be justified on grounds other than sex, marriage or race.

Under RRA indirect discrimination occurs when a condition is applied equally to every employee however only small proportion of a particular racial group can comply with it and cannot be justified on non racial grounds. For example minimum height rules which may exclude Asians or where a job does not require fluent English speaker.

Under SDA the proportion of women who can comply with the employer's specific requirement for the job is considerably smaller than the proportion of men who can comply. In London Underground Limited v Edwards the employee was a female single parent employed as a train operator. She was unable to work a new duty roster because of her family responsibility. It was held as an indirect discrimination on the ground that amongst train operators a smaller proportion of female single parents could cope with the new roster than male single parents.

Indirect discrimination has a disparate or adverse impact on a person on the grounds of their sex, racial group or marital status. In Price v Civil Service Commission it was held that the claimant only had to show that she could not comply in practice to meet the test can comply. This was accepted and reinforced by the House of Lords in Mandla v Lee. In this case Lord Fraser stated that the Sikh boy could not comply with the rule no turban in practice without giving up his distinctive customs and cultural rules".

The Court of Appeals decision in Meade-Hill v British Council considers the question of discrimination and the use of mobility clauses. The Council planned to move its headquarters from London to Manchester and relied on its mobility clause in the Employees contract. Mrs Meade-Hill refused to move. The Court of Appeal took the view that the proportion of women who could comply with the mobility clause was considerably smaller than the proportion of men who could comply. This automatically rendered the clause as indirectly discriminatory. The only way the employer could justify the clause was by arguing that the move was necessary due to the position held by her, irrespective of her sex.

In the case of pregnant women and women on maternity leave, there is no male equivalent and as only a woman can be in such a situation where she could have been treated less favourably, there is no need for a comparator either actual or hypothetical. In recent reported case Harriet Davies-Taheri, a Sheffield based solicitor who was fired by Proddow Mackay and a week later lost her baby was awarded 31,500 compensation. The Employment Tribunal found that she had been automatically unfairly dismissed by reason of pregnancy. Ms Davies-Taheri was suspended over allegations of gross misconduct a month after telling the firm of her pregnancy. She developed pre-eclampsia and the related HELLP syndrome the following month, and was dismissed by letter the week before she was admitted to hospital, where her baby was born four months early and died soon after birth. Although the defendant, Proddow Mackay intends to appeal against the order made on costs, as it stands, Ms Davies-Taheri has been awarded costs.

VICTIMISATON

Victimisation can apply to indirect and direct discrimination. In a victimisation case, it must be shown that the treatment of the employee was less favorable than someone who had not taken these steps and that the treatment is a result of their pursuing a discrimination case, giving evidence or making allegations of discrimination.

Many women may be deterred from exercising their rights under the SDA or supporting others who wish to exercise their rights for fear that they may be victimised by their employer. The act guards against this by making it unlawful for an employer to victimise an individual because she has brought a discrimination claim or given evidence in a discrimination case.

In Mrs M Bentham V North East Regional Airport Committee it was held that the Airport Authority had discriminated against Mrs Bentham under section 6(1)(a). It was stated that they failed to grant her an interview making her lose her chances of having a well paid job. The advertisement led her to believe that the job was open for women and men however, it was not and only men were appointed. Mrs Bentham was a security officer with Securicor at the Airport. After the recommendations from the Government that only one body should be responsible for the security, Securicor's contract was phased out. However, all female contract unit of Airline Security was retained. Despite repeated requests to the Airport Personnel Officer to enquire whether they intended to recruit more female security staff, Mrs. Bentham did not receive any satisfactory answers. When the Airport Authority did advertise for more security staff it stated that both men and women could apply although they required only men. Mrs Bentham complained but was never granted an interview. The day after filing a complaint under SDA to an industrial tribunal she was made redundant.

Protection offered by the SDA

Before 2003, if the discrimination complained of is related to the previous employment then that employee was not protected under SDA. To rectify the situation, in July 2003, the SDA was amended to ensure that this aspect of discrimination against ex-employees was also covered by the SDA. In a decided case, however, prior to the amendment being made, the House of Lords had held that the SDA (and the other discrimination legislation) did prohibit discrimination against ex-employees.

Despite the length of employment and number of hours worked, the SDA offers protection to the existing and potential employees in the same way. If the employee is working overseas the SDA still applies unless the work is to be done wholly outside Great Britain.

The SDA also applies to people employed under a contract to perform the work personally that is to say it protects people who are not employees as required for some of the employment rights, for example only an employee has a right not to be unfairly dismissed. In a case where a person A is employed by an employment agency to carry out the work for another person B, then person A is protected against discrimination that might occur in the work place by person B. The SDA also has special provisions, which apply to police officers, who are office holders rather than employees. There are special provisions, which even protect discriminations by firms against existing and potential partners. It also offers protection against discrimination by employment agencies, trade unions, educational institutions offering vocational training and barristers.

Responsibility for sex discrimination usually lies with the employer and also any other employee or worker who is found to have discriminated and for whom the employer has responsibility. This is known as vicarious liability. This applies to incidents of discrimination not only in the work place but also out of work activities such as Christmas parties. If employers show that they took all reasonably practicable steps to prevent discrimination occurring then they do have a defence against a complaint of discrimination based on vicarious liability

Enforcement of rights under the SDA

All claims involving disputes regarding the employment are brought in the employment tribunal. All other claims must start in a County Court in England and Wales and in Scotland in a Sheriff's court.

There is a very strict time limit of three months (less one day) imposed before a claim must be submitted. The time starts to run from the day discrimination occurred for the employment tribunal. In all other cases the time limit of six months (less one day) applies. There are special provisions, which apply to the discrimination in the state education claims.

Equal Pay

Pursuant to section 1 of the Equal Pay Act 1970 all contracts of employment are deemed to include an 'equality clause'. However every term in her contract of employment has to be the same as a man's contract of employment in order to claim equal pay.

In Capper Pass Ltd v Mrs B J Lawton the Employment Appeal Tribunal held that the industrial tribunal was correct in interpreting the law but gave guidance on the application of section 1(4) of the Equal Pay Act stating clearly that work can be broadly similar in nature and does not have to be same. In this case Mrs Lawton was employed as a chef and required to prepare about 20 lunches for directors and managers of the company. She was also required to work 40 hours a week. Two male assistant chefs, cooked around 350 meals a day in six sittings and worked a forty-five and a half hour week. Mrs Lawton claimed equal pay pro-rata with the men. The industrial tribunal agreed, stating that the work done by the two men, and the number of meals prepared, were not of sufficient practical importance so as not to class as 'like work' under section 1(4) of the Equal Pay Act.

The Employer can defend itself from an equal pay claim in section 1(3) by showing that there was a material factor. For example where a claim for like work is made that factor must be a genuine material difference between her case and his. On the other hand in the equal value claim the factor may be a genuine material difference.

Awards and punishments/Remedies and compensation

Sexual harassment can be an imprisonable criminal offence. Since November 1993 there has been no statutory limit to the amount an ET can award in sexual discrimination cases. Also a declaration that unlawful discrimination has occurred may be made. A compensation for financial loss, injury to feelings and injury to health can be awarded with interest.

If the case is dealt with in employment tribunals then a recommendation that the employer take action which will reduce the effect of discrimination on complainant can be made.

Conclusion and Recent Developments

The law regarding indirect discrimination allows employers to take positive action to avoid stereotyping for example, by making it unlawful not to employ a married woman in a post where traveling is a prerequisite only because she a married woman. It also allows employers to set up training for underrepresented group from particular sex or race.

Any dismissal on the grounds of sex or race automatically becomes unfair and the Employment Relations Act 1999 applies. One of the changes was index linking the minimum and maximum limit on compensatory awards to 50,000 (now 53,500). The present level of compensation in the UK was found to be incompatible with European Community Law. The current unfair dismissal compensation whether it is under Sex Discrimination Act or not fails effectively to remedy this gap and it also fails to implement the Acquired Rights Directive.

While international law protects against discrimination in a large number of areas, national law at present only protects against discrimination on the grounds of sex, race, marital status, disability and gender reassignment. The Sex Discrimination Act, Race Relations Act and Equal Pay Act together form a code to provide equal treatment. The act recognises three types of discrimination that is direct, indirect and victimisation.

In January 2002, an award of 1.4m in compensation to a city Share analyst, Julie Bower for sex discrimination was made when the employment tribunal found that she had been forced out of her job at Schroder Securities. This case highlighted the fact that for a long time city firms had a secret policy of pay deals for their staff. If employers don't act soon, a legal requirement to carry out pay reviews will be the only way forward.

In practice to avoid problems with SDA or RRA, it has become a norm to draft an employment contract with wide clauses such as Mobility clause. EC law has had a major impact in the area of discrimination laws, its interpretation of the Equal Treatment Directive.

Unless employers themselves encourage their female staff to complain when they feel there is a genuine reason to do so, many women still do not do so due to fear of losing job. This is particularly relevant where women are single parents and or the main bread earners. They accept the situation as it comes and desperately try to hang on to their jobs. Also there is a stigma attached to people who complain and stand up for their rights by branding them as ' trouble makers'. It is also true that these women who do take their employers to the tribunal to protect their rights find that they are having difficulty in finding the next position as 'off the record' references and comments have been provided by their ex employers. This is particularly true if the women involved are highly professional and the profession they work in is a 'Close knit community'. The only way to improve this situation is to a certain extent dependant on the management culture of the employer.

Encourage victims to complain informally and in confidence at an early stage. In Insitu Cleaning v Heads (1995) IRLR 4 it was suggested that this may be done by means of a separate grievance procedure.

The law as it stands ensures that the confidence is respected, that support is given and that some action is seen to be taken. The victim may have good grounds to resign and to claim constructive dismissal. It doesn't eradicate discrimination completely but does try to protect victims. There are number of people especially people from different racial background suffer discrimination when it comes to offer of employment or promotion or dealing with their problems regarding balancing work and family life.

It is not necessary to show that there was an intention to discriminate against you if you wish to take action against the employer about sex discrimination. You only have to show that discrimination took place. It is always helpful to have properly drafted discrimination and harassment policies within the organization. The employer must ensure that staff is properly trained on these issues and a monitoring system is in place. However this is only possible in a larger organisation, smaller businesses are still getting away with this.

In practice despite the well documented employment protection legislation which has come into force over the last few years, the experience consistently points towards the fact that many employers, and their managerial staff, are simply not listening to how the law demands they treat their employees. The recent case laws show that the employers with conservative tendencies are the worst offenders when it comes to dealing with sex discrimination even when there has been high financial penalties and compensation. The employers seem to take RRA more seriously due to fear of wide scale implications of such an accusation and tribunal case against them. This has only come about after flood of cases merely due to ignorance of the law.

Reported in the Times today that 1500 women health worker in Cumbria will share up to 300 million in equal pay award after their union won an eight year legal battle. The women have won the right to be paid on equal terms with male workers. This large award comes as the unions are stepping up the pressure for women to be paid the same as men for work of equal value. Equal pay in Health Service is now intended to be addressed by the Agenda for the change programme - the sweeping reforms of working practices which was agreed last year. Last year the prison service was ordered to pay increase in pay to nearly 2000 women workers. Several years ago speech therapists who were mainly women were paid in line with clinical physiologists who were mainly men. The above analysis shows clear signs of changes in employers' attitude toward indirect discrimination as the grip of law tightens.

How the law develops in this area needs to be seen as it has not eradicated discrimination completely.

BIBILIOGRAPHY

1. Cases & Materials on Employment Law by Richard Painter, Ann Holmes & Stephen Migdal, Blackstone Press Limited, published in 1995

2. Employment Law Legal Practice Course by James Holland & Stuart Burnett 1999-2000 series

3 Towards equality, EOC, A Casebook of Decisions on SDA and Equal Pay 1976-1988

4 Selwyn' Law of Employment 10^th Edition, Butterworths

5 Employment Law by Deborah Lockton fourth edition by Palgrave law masters

6. The Times Tuesday, 15 March 2005

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