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What Is Sexual Discrimination in UK Law?

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Kate has over eight years of experience as an employment and personal injury legal executive. She runs LawCat, a legal explanations website.

With all the discussion about sexual harassment and discrimination in the media recently it is easy to become confused about what the law is in the UK, who it protects and why it protects them.

In this article, we will discuss what counts as sexual discrimination in the workplace (sexual harassment in the workplace will be covered in a separate article). We will also discuss what you can do to find out more information, and what you can do if you believe that you are the victim of sexual discrimination.

By the end of this article, the UK’s laws regarding sexual discrimination should be clearer.

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The Equality Act 2010

In the UK discrimination is covered by the Equality Act 2010. This act provides protection against discrimination for people who suffer due to a ‘protected characteristic’. There are nine protected characteristics:

  1. Age
  2. Disability
  3. Gender reassignment
  4. Marriage or civil partnership (in employment only)
  5. Pregnancy and maternity
  6. Race
  7. Religion or belief
  8. Sex
  9. Sexual orientation

This means that if you receive unfavourable treatment in the workplace because of your age, a disability that you have (or are perceived as having), gender assignment you have undergone (or are undergoing), your marriage, your pregnancy, your plan to go on maternity or paternity leave, your race, your religion, your biological sex or your choice of bed partner, then you will be protected under the Equality Act.

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Do Sex Discrimination Laws Just Protect Women?

Short answer: No.

Long answer: As said above, the Equality Act protects anyone who has a protected characteristic. Sexual discrimination is when a person is treated less favourably because of their biological sex, which is something everyone has. Therefore the Equality Act protects anyone, male or female, if they receive discriminating treatment because of their biological sex.

This Act puts both sexes on equal footing. This means that sexual discrimination against men is just as unlawful as sex discrimination against women. It is unfortunate that the general assumption is that protection against sexual discrimination was put in place to protect women only, as sexual discrimination can happen to anyone.

Sexual discrimination was not discussed for the longest time. Then when discussion began, there was a stigma attached to it that has taken a long time to shake off. Fortunately, discussion about sexual discrimination is becoming more commonplace and people are coming forward with their accounts more and more. Hopefully, this will encourage anyone who is a victim of sexual discrimination, male or female, to come forward and speak out against discrimination in the workplace.

Example: Employee A is male, and Employee B is female. Both Employee A & B carry out identical jobs, and they have the same qualifications, approximate level of experience and responsibility. Both Employee A & B are good workers, neither have any warnings on file, and both have good work outputs. Yet Employee B takes home more money than Employee A. This is potentially sexual discrimination, as all other factors show that there is no reason Employee B should be taking home substantially more money than Employee A.

This example also applies to training opportunities. If Employee B is offered training opportunities and Employee A is not, and the employer cannot justify why they are not offering Employee A the same opportunities for training and subsequent advancement as they are offering Employee B, then this could be discrimination.

If you have suffered Sexual Discrimination in the Workplace

Harassment Is Not Discrimination

You must remember that discrimination and harassment are two different things. If someone is harassing, you because of a protected characteristic it may not fall under discrimination (because it is harassment).

However, if an employee is bullying or harassing another employee because of their biological sex (or other protected characteristic) and the employer is made aware of this but does nothing, then this will likely qualify as discrimination by the employer. Especially if the employer would usually act on bullying and harassing behaviour but does not in this instance.

For example, Employee A is a transgender man and is verbally abused regularly by Employee B due to his transitioning. Employee B is not discriminating against Employee A, Employee B is harassing Employee A. However, if Employee A’s boss knows about this and does nothing to rectify the situation they could be seen to be discriminating against Employee A especially if they would normally put a stop to harassing behaviour but fail (or refuse) to do so in this instance.

If in doubt, then talk to an employment solicitor.

A question that is raised with me often regards the concept that it's not ‘safe’ to have a sense of humour in the workplace anymore.

“What if the behaviour is just a joke? Surely that cannot be harassment if it’s all meant in good fun.”

The short answer in this situation is that this will still count as harassment, even if it’s intended to be funny. The employer will still be expected to act on it even if the perpetrator has no genuine intent to upset anyone. As regarding protected characteristics, it is the victim’s view of the behaviour that will usually take precedence over the intent of the harasser.

Example: Employee A, a female, repeatedly sends out email memes to everyone in the office. These memes are often depreciating of men, sometimes showing violent or sexual consequences to male stereotypes. Employee B, a male, is upset and offended by these emails and reports them to the employer. Employee A says that the emails were not intended to upset Employee B, they were funny. The employer must act to prevent this behaviour.

Obviously, this example works exactly the same if employee A's & B’s biological sex is reversed.

But that does not mean that people should be walking on eggshells constantly, it just means that professional standards of behaviour should be observed in the workplace (this should be done anyway). Also, the harasser is not without any defence in this situation. I have heard a few people voice concerns that they worry that an individual will take a disliking to them and start crying harassment and discrimination over trivial things. The reasonableness of their feelings will always be called into account and reviewed.

For example, Employee A dislikes Employee B and starts complaining that Employee B is harassing them by standing too close and touching them inappropriately, etc. Employee A claims that Employee B’s behaviour is motivated by Employee A’s biological sex. Employee B has only ever touched Employee A when they were in the lift together and they brushed past them accidentally on the way out of the lift. The claim goes to the employment tribunal, and the employment tribunal sees CCTV footage of the incident in the lift which Employee A claims have left them to afraid to return to work. The tribunal will note the extreme reaction by Employee A and dismiss the case.

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What Can You Do if You Feel Sexually Discriminated Against at Work?

The first thing you must do is to make your employer aware of the situation, approach them informally in the first instance, aka tell them verbally. If nothing is done and the behaviour continues then make your complaint more formal by raising a written grievance.

For more information on raising a grievance check out the below link.

This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.

© 2018 Katie

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