Gender Discrimination in the Workplace
Gender discrimination, otherwise known as sex discrimination, is illegal and should not be tolerated in the workplace. All employees are protected under legislation such as the Equality Act 2010, which prohibits gender discrimination in the workplace by listing sex as a protected characteristic.
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Who is protected?
Employees are protected against gender discrimination from the opposite sex and the same sex. For example, a woman who has been denied a promotion because of her gender would be able to bring a claim for sex discrimination, whether she had been denied by a man or a woman.
Men and women are equally protected from sex discrimination. Using the above example, it would be equally unlawful for a man to be denied a promotion because of his gender.
What are the types of Gender Discrimination in the workplace?
There are several potential claims related to Gender Discrimination covered by the Equality Act 2010:
1. Direct Discrimination
This is where an employer treats an employee less favourably due to their gender (sex) compared to how an employee of the opposite gender would be treated in the same circumstance.
An example of this would be a male receiving a promotion over a female, despite the female having greater experience because the employer believes the male is less likely to take time off work to start a family.
2. Indirect Discrimination
This is where an employer has a provision, criteria or practice (‘PCP’) in place that applies to both genders, but the policy/rule disproportionately impacts one gender.
For example, the employer may have a PCP in place where employees are required to work on a full time basis. This may disproportionately impact female employees, who are more likely to have childcare responsibilities.
However, there are some circumstances where the application of a PCP that disproportionately impacts one gender would not amount to discrimination. In other words, there is an exception where there is a genuine business reason or requirement for the disproportionate treatment and it is proportionate to achieving a legitimate aim.
Both harassment and sexual harassment relating to an employee’s gender are forms of gender (sex) discrimination. There are three different types:
- The first type is harassment – where an employer makes an employee feel humiliated, offended and/or degraded due to their gender e.g. inappropriate comments about women making a female employee feeling uncomfortable and humiliated.- The second is sexual harassment – where an employer makes an employee feel humiliated, offended and/or degraded because they have been treated in a sexual way. This includes ‘unwanted conduct of a sexual nature’, such as sexual comments/jokes and touching.
- The third type is where an employer treats an employee differently due to their unwillingness to tolerate the harassment or sexual harassment they receive e.g. demotion because the employee refused to accept sexual comments.
This protects employee’s who are bringing a claim under the Equality Act 2010 from detriment. For example, an employee who has brought a claim for Direct Discrimination based on sex cannot be treated less favourably because they have brought this claim – that would amount to victimisation.
The Equality Act 2010 also contains provisions that require men and women to receive the same pay for equal work. This covers all employees, workers, apprentices and agency workers.
The same pay is not limited to the same salary/wage. It includes all forms of payments, such as bonuses, overtime, pension, benefits, sick pay, etc.
Equal work means:
- ‘Like work’ – where the role and skills involved in completing the tasks are similar;
- ‘Work rated as equivalent’ – a job equalization scheme rates the jobs of equal value;
- ‘Work of equal value’ – equal value in terms of demands e.g. skill, responsibility, and effort.
This means that two roles can be classed as “equal work” despite not seeming equal at a first glance.
If the equal work requirement is met, different pay will only be allowed where there is a ‘material factor’ justifying the difference in pay. This must be a genuine reason for the pay difference e.g. a male employee has higher qualifications than his female counter-party and these skills pay an integral part in the role.
If you believe you are the victim of discrimination in the workplace, or you believe that you have not received equal pay, please contact our gender discrimination lawyers.
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