Law guide: Employment

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Sex discrimination

Sex discrimination

Contents

Introduction

The Sex Discrimination (Northern Ireland) Order 1976 provides that you cannot treat a worker less favourably than others because of their sex. It protects workers, employees, partners or office-holders, former employees or job applicants.

Areas of sex discrimination in employment

Sex discrimination in the workplace is unlawful in all aspects of employment, including the recruitment process, status, training, promotion and transfer opportunities, redundancy, dismissal and even post-employment.

In some cases, however, a job can be offered to someone of a particular sex without it amounting to unlawful discrimination, if there is a genuine 'occupational qualification' for the role.

Examples could include:

  • Some jobs in single-sex schools
  • Jobs in some welfare services
  • Acting jobs that need a man or a woman
  • Where the job needs to be held by a particular gender to preserve a level of decency or privacy, such as where the job will involve some physical contact and people might object to the opposite sex.
  • Where the job might require the employee to live in accommodation provided for by the employer and the only accommodation available is for people of a particular gender.
  • Where the job is to be performed in a country where women are not allowed to perform those duties.

Types of sex discrimination

Direct sex discrimination

This is where a worker is treated less favourably because of their sex when compared with another worker (known as a 'comparator') of the opposite sex who shares the same or similar (but not materially different) circumstances as the complaining worker.

The comparator's circumstances do not need to be identical (in terms of the type of job, job level, job experience and seniority, etc.), but must not be wholly dissimilar. If a suitable comparator cannot be found, then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as the complaining worker (such as their title, role, level etc). An Industrial Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

You could be liable for direct discrimination even if you did not intend to discriminate against your employee.

You cannot defend a direct sex discrimination claim by 'justifying' it (arguing that your actions were a proportionate means of achieving a legitimate aim). The only defence would be to prove that there was no sex discrimination.

Indirect sex discrimination

This will occur where you equally apply a formal or informal provision, criteria or practice to all the workers in the workplace that puts a group of workers at a particular disadvantage when compared with other workers because of their sex, and a worker within that group actually suffers the particular disadvantage.

It does not matter whether or not this has been done intentionally.

You can defend against indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if you can show that its application is a proportionate means of achieving a legitimate aim.

Harassment

Harassment is unwanted conduct (including of a sexual nature) towards a worker by an employer, another worker or a third party (such as customers), because of that worker's actual or perceived sex, or association with someone of a particular sex. This applies to any conduct that violates a worker's dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment even if it was not intended as such.

Unlawful sex harassment will also occur if an employer treats a worker less favourably because they have rejected or submitted to any unwanted conduct.

Furthermore, the unwanted conduct will be harassment even where it was not intended to be harassing. If it is reasonable to regard the unwanted conduct as having a harassing effect, it may be unlawful. A worker will not be protected if they are over sensitive and unreasonably take offence to an innocent comment.

For example, making sexual remarks or gestures, allowing displays or distribution of sexually explicit material, or referring to people of a particular sex by a potentially offensive nickname, could all result in unlawful harassment.

You also have a duty to protect a worker from any sexual harassment by a third party, such as from a client or customer, which they may be subjected to in the course of their employment. You must take reasonably practicable steps to prevent such harassment, but you will not be liable for the conduct of third parties which you are not made aware of. You can only be held liable if the worker has been subjected to such harassment on at least two other occasions. It need not be the same person causing the harassment on each occasion.

Employers are liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done whilst at work' or 'done while in a workplace-related environment'. Employers can't defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.

You can, however, escape liability for harassment, if you took reasonably practicable steps to prevent it.

Victimisation

Victimisation happens when a worker is treated less favourably than another worker because:

  • They have asserted their right not to be discriminated against on the basis of their sex by making a complaint about sex discrimination
  • They gave evidence or information in a complaint of sex discrimination
  • They take any other action under legislation relating to sex discrimination
  • They have alleged that you or another worker has contravened sex discrimination legislation
  • You know that they intended to do or you suspect that they have done or intend to do any of these things

For example, a worker might have grounds for a victimisation claim if they are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events because they took any of the above mentioned actions.

Positive action

In some circumstances, you may encourage or offer support specifically to men or women. This is called 'positive action' and is, in certain circumstances, allowed under sex discrimination laws.

For example, an employer with no female managers might offer some training in management skills only to women or encourage them to apply for management posts. Positive action applies only to training and encouragement to apply for posts, so when it comes to choosing who is to get a post the employer must consider all candidates on their suitability alone.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of their circumstances. Positive discrimination is unlawful.

Tribunal claims

If you dismiss an employee, or if an employee resigns because they claim that they have been discriminated against by you, then they may make a complaint of unfair dismissal to an Industrial Tribunal. In addition, they may also claim for damages on the grounds of discrimination which they will be able to do regardless of their length of service.

A complaint must be presented within three months from the date of the act complained of, unless the tribunal considers that it is fair and reasonable in the circumstances to hear the claim outside that period.

While there is a limit on the amount of compensation a tribunal can award for unfair dismissal, there is no limit in cases of unlawful discrimination.

Further information

You can get more information from the Labour Relations Agency (LRA), which offers free, confidential and impartial advice on all employment rights issues. You can call the LRA helpline. The Equality Commission for Northern Ireland can help with advice regarding discrimination and equal opportunities.