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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Sex - overview
There are four types of discrimination:
There is a great deal of commonality between the provisions relating to discrimination on grounds of:
religion or belief
The time limit is normally three months from the discriminatory act or omission (except for the armed forces where it is six months). The time limit can be extended whenever the tribunal considers it just and equitable to do so.
With effect from 6 April 2009 the statutory dispute resolution procedures were repealed, but they continue to apply in certain circumstances. In certain circumstances where the statutory dispute resolution procedures do apply, the operation of the statutory dispute resolution procedures will extend the basic time limit by an extra three months. For further details on when the statutory dispute resolution procedures will still apply, see Dispute resolution procedures - transitional provisions.
Discriminatory contractual terms are treated as continuing acts for the duration of the contract. Acts which extend over a period are treated as being done at the end of that period. These must be distinguished from single acts with continuing consequences.
No qualifying period of employment is needed to make a discrimination claim. A claim that the dismissal was discriminatory can be made without any qualifying period of service. Unfair dismissal claims done for a list of specific discriminatory reasons (eg pregnancy) need no qualification period and will be automatically unfair.
For further information, see Discrimination time limits.
Effect of statutory dispute resolution procedures
STOP PRESS! The dispute resolution procedures were repealed with effect from 6 April 2009, but they continue to apply in certain circumstances. For further details on when the statutory dispute resolution procedures will still apply, see Dispute resolution procedures - transitional provisions.
The statutory dispute resolution procedures are potentially important to the bringing or defending of any discrimination claim. You need to clarify whether the grievance procedures apply, the dismissal and disciplinary procedures apply, or both. Where the grievance procedures apply, if a claimant fails to send a grievance to his employer at least 28 days before presenting his tribunal claim, the claim will be rejected. Failure by either party to complete any relevant statutory dispute resolution procedure will affect the amount of compensation awarded. Where a discrimination claim also includes a claim for unfair dismissal and the dismissal and disciplinary procedures apply but have not been completed through the employer's fault, the dismissal will be automatically unfair.
For further information, see Statutory dispute resolution procedures and discrimination claims.
Effect of Acas Code of Practice
Where specified types of claim are brought by an employee, and the circumstances of that claim are such that a relevant Acas Code of Practice could apply, then the tribunal may increase or decrease any award made by up to 25%, if there has been an unreasonable failure to follow the Code of Practice. Schedule A2 sets out the types of claim which are covered by this provision, which includes all discrimination claims. It is more likely that the grievance procedure in the Code of Practice will apply in discrimination claims, but it is possible the disciplinary procedure may also apply.
For further information, see Assessing discrimination compensation - Adjustment of awards for failure to complete statutory procedures and Acas disciplinary and grievance code - application, Acas disciplinary and grievance code - procedural requirements and Acas disciplinary and grievance code - effect of non-compliance.
Events which give rise to a claim
Events before, during and after employment may give rise to a claim.
Before employment, the Equality and Human Rights Commission can take action about adverts which discriminate on grounds of sex or race. These adverts may also be evidence of a recruitment policy that is directly or indirectly discriminatory, which could assist a claim by an individual about recruitment. Selecting individuals for employment on discriminatory grounds is unlawful, as is offering different terms on discriminatory lines.
During employment, discrimination regarding access to promotion, transfer, training, benefits, facilities or services, or by subjecting a person to any other detriment is unlawful.
After employment ends, it remains unlawful to discriminate against an ex-employee where that discrimination or harassment 'arises out of and is closely connected to' the former employment relationship.
For further information, see Events which give rise to a discrimination claim.
Claims by employees
Discrimination claims can only be made in relation to employment at an establishment in Great Britain. This includes claims brought by applicants for positions at an establishment in Great Britain. Employees working wholly outside Great Britain will generally not be covered (but there are exceptions).
Employers may be liable for discrimination on their own behalf, vicariously liable for the acts of their employees and as principal for the authorised acts of their agents. Employers can only escape vicarious liability by showing they took all reasonably practicable steps to prevent the employee from doing acts of the relevant type. Employers are not generally liable to employees for the acts of third parties (except in relation to repeated harassment on grounds of gender: see below, under 'Harassment'). Anyone who knowingly helps another to do an act of unlawful discrimination is liable as if they did the act themselves.
Individual employees who discriminate may be joined as additional respondents to a claim but cannot be the only respondent.
For further information, see Discrimination claims by employees.
Claims by non-employees
The discrimination legislation covers: self-employed persons working under a contract to do work personally, contract workers, Crown employees, partnerships, barristers, the police, trade unions, organisations responsible for conferring qualifications, bodies that provide or arrange training, employment agencies or LEAs providing employment-related services and office holders.
For further information, see Discrimination claims by non-employees.
Burden of proof
In deciding whether a claim is proven or not, the tribunal is required by statute to use a two-stage test. At stage 1, the tribunal must decide if the claimant has proved facts from which the tribunal could, in the absence of an adequate explanation, conclude that the respondent has discriminated. If (and only if) the answer to stage 1 is 'yes', the tribunal proceeds to stage 2, when it is for the respondent to prove (by producing appropriate evidence) that it did not in fact discriminate. If the respondent fails to do that, the tribunal must find in the claimant's favour. The Court of Appeal has given the detailed 'revised Barton guidance' on this topic in Igen v Wong.
For further information, see Burden of proof in discrimination.
Direct discrimination is treating someone less favourably than another on one of the prohibited grounds (ie on grounds of race, sex etc). A comparison must be drawn between the claimant and a comparator. That comparator may be a real or a hypothetical person but, in either case, that comparator's 'relevant circumstances' must be the same or not materially different. A person can be shown to act on prohibited grounds if 'but for' the gender, race, age etc, of the claimant, their treatment would have been better. It is not necessary that the employer should have an intention to discriminate, or have a discriminatory motive.
For further information, see Direct discrimination.
Indirect discrimination is when an employer applies a provision, criterion or practice (PCP) to a group including the claimant which places those within that group who share a characteristic (eg race, sex etc) with the claimant at a particular disadvantage compared to those who do not. It is not unlawful in cases of gender reassignment discrimination. An employer may escape liability if it can show that imposing the PCP was 'a proportionate means of achieving a legitimate aim'.
Claimants may seek to prove indirect discrimination claims using statistics, in which case the tribunal will first have to establish the correct pool of persons to be involved in the comparison, which must contain both those who find it difficult (or are reluctant) to satisfy, or cannot satisfy the PCP and those who willingly satisfy it. The PCP is discriminatory if the percentage of those within the pool that willingly satisfy the PCP, and share the relevant characteristic with the claimant, is significantly lower than the percentage of those within the pool that cannot satisfy or have difficulty in satisfying the PCP who share that characteristic.
For further information, see Indirect discrimination.
Justification is a defence to claims of indirect discrimination. It involves showing that the discriminatory provision, criterion or practice (PCP) was a 'proportionate means of achieving a legitimate aim'. Proportionality means balancing the degree of impact against the justification offered. A respondent can argue justification even if it did not consider the point when it imposed the PCP.
For further information, see Justification.
Employers victimise employees if they retaliate against them for asserting their rights under the discrimination legislation. It does not include honest and reasonable steps to protect its position taken by an employer facing discrimination proceedings, even if they amount to 'less favourable treatment'. The tribunal has to decide if the employee performed a 'protected act', then whether they have been less favourably treated, and finally whether the less favourable treatment occurred because the employee performed the protected act.
Protected acts include bringing discrimination proceedings, giving evidence in them, or merely alleging that someone has done something which would amount to unlawful discrimination. The protected act need only be part of the discriminator's conscious, subconscious or unconscious motivation.
Respondents can avoid liability if they can show that the allegation which formed the protected act was false and made in bad faith. It is also a potentially valid (albeit difficult) defence for an employer to show that they treated the claimant as they did not because of the fact that they did a protected act, but because of the way they went about it.
For further information, see Victimisation.
Harassment occurs when someone engages in unwanted conduct that is related to an individual's sex, or that of another person, and it has the purpose or effect of violating her dignity, or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to her. The nature of the conduct does not matter. The claimant must show that:
it was reasonable for the conduct to have had that effect on them (whether the perpetrator intended it to have that effect or not)
the perpetrator's conduct was related to (not necessarily caused by) the sex of the claimant, or the sex of some other person
There are also additional types of harassment under the Sex Discrimination Act 1975:
sexual harassment: (regardless of motivation) subjecting someone to sexual conduct which violates their dignity, or creates an adverse environment as described above
treating someone who was previously subjected to ordinary or sexual harassment (which they either rejected or submitted to) less favourably because they rejected or submitted to it
failing to take such steps as would be reasonably practicable to prevent third parties harassing an employee, where the employer knows that the employee has been harassed on at least two other occasions
There is no express protection from harassment on grounds of marital status, civil partnership status, pregnancy, maternity leave , although some such claims could be brought as direct discrimination claims.
For further information, see Harassment.
Associative discrimination: on grounds of a third party's characteristics
Associative discrimination (a shorthand term used to describe direct discrimination and/or harassment that is suffered by a person because of another's protected characteristics) is unlawful in relation to sexual harassment. It is not, currently, expressly covered in relation to direct sex discrimination, gender reassignment, married state or civil partnership or pregnancy and maternity leave discrimination and harassment, although some such claims could be brought as direct discrimination claims. Alternatively, tribunals may be prepared to construe the Sex Discrimination Act 1975, as currently drafted, as covering such claims.
For further information, see Associative discrimination: on grounds of a third party's characteristics.
Defences and exceptions
Illegality: only serious illegality instituted by a claimant is likely to lead to a tribunal declining jurisdiction, particularly where the claimant gained from it.
Public benefits: no discrimination claim can be made about benefits which the employer provides to the public on substantially similar terms as it provides them to employees.
National security: it is lawful to discriminate on grounds of sex, sexual orientation, religion or belief or age (but not race) in order to safeguard national security.
Diplomatic immunity: foreign states may claim immunity from discrimination claims except in respect of personal injury claims arising out of discrimination claims.
Positive discrimination: certain specific types of 'positive discrimination' are allowed, including more favourable treatment of women in connection with pregnancy or childbirth, but it is otherwise unlawful to treat one group more favourably than another on prohibited grounds.
Pay regulated by the contract: once the contract has begun to run, any claim concerning 'pay that is regulated by the contract' must be brought under EPA 1970. Claims about contractual pay discrimination in relation to job offers are however covered by SDA 1975
Police: it is lawful to discriminate against police, police cadets and special constables in relation to height, uniform or equipment, and in relation to pensions in the case of police cadets and special constables
Prison officers: it is lawful to discriminate against prison officers in relation to height requirements
Armed forces: it is lawful to discriminate against a member of the armed forces 'for the purpose of ensuring the combat effectiveness of the armed forces'
Ministers of religion: it is lawful to discriminate against a minister of religion in order to comply with the doctrines of the religion, or to avoid offending its followers, by requiring them to be a particular gender, or not to be a transsexual, or not to be married or in a civil partnership, or not to have (or to be married to or in a civil partnership with someone who has) a living former spouse or civil partner
Sports, games and other competitive activities: it is lawful to have men-only or women-only events for a sport, game or competitive activity where women would otherwise be at a physical competitive disadvantage compared to men
Communal accommodation: it is lawful for reasons of privacy or decency to provide workers of one gender but not the other with dormitories or other shared sleeping accommodation where the employer can show that it managed the accommodation as equitably as possible between men and women, and made all reasonably practicable arrangements to compensate for the detriment caused by the discrimination. This exception also applies to situations where a benefit, facility or service can only be provided for the shared use of workers of one gender but not the other
For further information, see Discrimination defences and exceptions.
Genuine occupational qualifications
Some jobs may require the holder to have particular personal characteristics. Usually, this is discrimination but there are specific exceptions where it will be lawful to require such characteristics. This type of defence is called the Genuine Occupational Qualification defence. This defence is usually available for discrimination involving: who should be offered employment; how employees are treated in relation to promotion, transfer or training; and dismissal. It is not usually a defence to discrimination involving the terms of employment, subjecting someone to a detriment or harassment.
For further information, see Sex - genuine occupational qualifications.
A tribunal upholding a direct discrimination claim should consider, according to what is just and equitable:
ordering compensation and/or
making a declaration of rights and/or
making a recommendation of action
It can take the wrongdoer's motivation into account in assessing whether it is just and equitable to order a particular remedy at all but not when deciding the amount of compensation.
Compensation may include general financial loss, injury to feelings, personal injury damages, interest, aggravated damages and exemplary damages.
Multiple respondents: the tribunal must choose between making individual awards against each respondent (reflecting their individual responsibility for the damage) or making all respondents jointly and severally liable for some or all of the award.
Statutory dispute resolution: STOP PRESS! the statutory dispute resolution procedures were repealed with effect from 6 April 2009, but they continue to apply in certain circumstances (see Dispute resolution procedures - transitional provisions). Where they apply and where the employee fails to complete a relevant statutory dispute resolution procedure, his compensation will usually be reduced by between 10% and 50%. Where the employer is at fault, compensation will usually be increased by between 10% and 50%.
Acas Code of Practice on Disciplinary and Grievance procedures: where the Code of Practice applies, and there has been an unreasonable failure by the employee to follow it, his compensation may be reduced by up to 25%. Where the employer unreasonably fails to follow it, compensation may be increased by up to 25%.
Indirect discrimination: compensation for discrimination on grounds of sex may only be ordered either if the employer intended to discriminate, or if it would be appropriate to make a declaration or recommendation as well.
Interest: is calculated as simple interest on net losses from the mid-point between the date of the discrimination and the date of the tribunal's assessment (or earlier payment by the employer), at the Special Investment Account Rate, except for injury to feelings which attracts interest over the whole period from act to assessment.
Aggravated damages: will only be appropriate where malice or other bad intention of the discriminator is shown to have caused injury to feelings.
Exemplary damages: are very rare and are intended to punish and deter oppressive, arbitrary or unconstitutional action by agents of government, or conduct calculated to make a profit which may well exceed compensation otherwise payable, to mark the tribunal's disapproval and to deter its repetition.
For further information, see Discrimination remedies overview and Assessing discrimination compensation.
General financial loss
The aim is to put the injured party in the financial position they would have been in had the discrimination not occurred, based on after-tax earnings but adjusted for tax, mitigation, accelerated receipt etc. There is no need to demonstrate foreseeability. The tribunal will often use statistical information to assess the percentage adjustment to make to reflect the chance that a future event or events would have occurred.
For further information, see General financial loss in discrimination claims.
Injury to feelings and personal injury
Damages for injury to feelings are almost always awarded, even though there is no obligation to do so, with the aim of compensating victims for the hurt caused by knowing that they have been treated in a discriminatory way. They should be similar in size to personal injury awards, not defamation awards.
For further information, see Injury to feelings and personal injury.
Declarations and recommendations
Declarations are rarely used but may be useful where compensation is inappropriate or some point of principle is involved.
Recommendations can be made that the respondent take action within a specified practicable period to obviate or reduce the adverse effect on the claimant of any act of discrimination to which the claim relates. They cannot be used to recommend that someone gets a pay rise or be given a job. It may be inappropriate to recommend that actions be taken by non-parties, or that apologies be made. Non-compliance can lead to an increase in compensation.
For further information, see Declarations and recommendations in discrimination claims.
Married state and civil partnerships
It is unlawful discrimination to treat a married person or a person who is in a civil partnership less favourably than you would were he or she single. It is not unlawful to discriminate because someone is single. Discriminating against people who are parents will not be direct discrimination but, if they are married, may be indirect discrimination on grounds of married state. The same act may give rise to more than one variety of unlawful discrimination.
For further information, see Married state and civil partnerships.
Gender reassignment and sexual orientation
It is unlawful to treat a person less favourably on the grounds that he or she is undergoing gender reassignment, plans to undergo it, or has undergone it. Persons taking time off work to undergo gender reassignment procedures must be treated no less favourably than persons taking time off for other reasons such as sickness.
Whilst most discrimination against homosexuals will be covered by the Employment Equality (Sexual Orientation) Regulations 2003 rather than the Sex Discrimination Act 1975, less favourable treatment of a male homosexual compared to a female homosexual would potentially be covered by the Sex Discrimination Act instead.
For further information, see Gender reassignment and sexual orientation.
Pregnancy and maternity leave
A person discriminates against a woman if at any time during her pregnancy (or the two weeks after the pregnancy ends) or during her maternity leave he treats her less favourably on the ground of her pregnancy or on grounds of pregnancy-related illness. Outside those periods, treating someone less favourably for a reason connected with pregnancy is likely to constitute sex discrimination.
A person discriminates against a woman if at any time he treats her less favourably because she takes or seeks to take maternity leave.
Where a woman is discriminated against whilst on Ordinary Maternity Leave (OML) or additional maternity leave (AML) in relation to payments which are not regulated by her contract, she is, with a few exceptions, excluded from the right to bring a claim under SDA 1975.
The position for women whose expected week of childbirth (EWC) began prior to 5 October 2008 is different: whilst on AML they may not, subject to a few exceptions, make a claim under the SDA 1975 relating to the deprivation of any benefit (ie whether the benefit is remuneration or not) arising under her terms and conditions of employment.
For further information, see Pregnancy and maternity leave.
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