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Sex discrimination

Overview
The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for the protected characteristic of ‘sex’.

Key points

  • The protected characteristic of ‘sex’ refers to being a man or a woman.
  • Direct discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ sex compared with others in like-for-like circumstances.
  • Indirect sex discrimination occurs when a provision, criterion or practice (PCP) puts an individual of one sex at a particular disadvantage compared to people of the other sex. An employer may be able to justify the PCP as a proportionate means of achieving a legitimate aim.
  • An occupational requirement, where the nature or context of the work require a person to be of a particular sex, and religious requirements relating to sex, where employment is for the purposes of complying with the doctrine of an organised religion, can be lawful exceptions to direct and indirect discrimination.
  • Harassment occurs where unwanted conduct related to sex, or of a sexual nature, violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. It also occurs where an individual is treated less favourably because he or she has either submitted to, or rejected, sex harassment, or harassment of a sexual nature, which has the purpose or effect described above.
  • Victimisation occurs where a person is subjected to a detriment for carrying out a ‘protected act’ (for example, bringing a discrimination claim).
  • Employers are liable for acts of discrimination, harassment and victimisation carried out by their employees ‘in the course of employment’.
Recent developments

The Government Equalities Office has recently issued long awaited guidance on dress codes and sex discrimination. The guidance has been published as a result of a petition begun when a female agency worker was sent home from work for not wearing high heels. More information on the guidance is in our article "New dress code guidance published"

In January 2020, the Equality and Human Rights Commission released guidance offering practical examples of how to respond effectively to harassment, with a focus on sexual harassment, in the workplace.

Menopause inquiry

The Equalities Committee recently ran an inquiry into menopause and the workplace. It examined the extent of discrimination faced by menopausal people in the workplace, and investigates how Government policy and workplace practices can better support those experiencing menopause.

A 2019 survey conducted by BUPA and the Chartered Institute for Personnel and Development (CIPD) found that three in five menopausal women- usually aged between 45 and 55- were negatively affected at work and that almost 900,000 women in the U.K. left their jobs over an undefined period of time because of menopausal symptoms. This could mean that women are leaving businesses “at the peak of their experience” which will “impact productivity”. Women in this age group are likely to be eligible for senior management roles, and so their exit can lessen diversity at executive levels. It can also contribute to the gender pay-gap and feed into a disparity in pensions.

The results of the inquiry are awaited but organisations should expect to be required to focus more heavily in the future on the support they offer to employees going through menopause.

World Menopause Day in 2021 is 18 October.