Women@Work Topic of the Month

February 2010

Women and Discrimination

In an employment context, the law affords workers protection from discrimination. The field of equalities is one which is constantly changing and the Equality Bill, which is expected to become law in Spring 2010, will bring about a number of significant changes to UK discrimination law.

 
Current Strands of Discrimination

At present, it is unlawful for UK employers to discriminate on grounds of:
• sex (including pregnancy and maternity),
• marital status (including civil partnership status),
• race,
• disability,
• sexual orientation,
• age,
• religion/belief, or
• gender reassignment.

Employees who suffer unlawful discrimination can raise a claim at an employment tribunal.

           
These strands of discrimination are constantly evolving. For example, in recent cases, the courts have held that environmentalism and spiritualism are beliefs which are capable of protection under the religion/belief regulations.

        
Current forms of discrimination

    
Focusing on sex discrimination, this can take a number of forms:

• Direct discrimination (e.g. “We don’t employ women”).
• Indirect discrimination - arises where employers put in place a provision, criterion or practice (which cannot be justified) which applies equally to all staff, but which puts a particular group at disadvantage. E.g. “Employees must be 6ft tall” - since more men than women are 6ft tall, chances are, women will be disadvantaged by this criterion – they won’t get the job. To escape a finding of indirect sex discrimination, an employer would have to show that the criterion can be justified.
  
  Another example might be “all staff must work evenings”. Since, statistically, more women than men have childcare commitments this could put women at a disadvantage. Again, if the requirement cannot be justified, such a criterion could give grounds for an indirect sex discrimination claim.
• Victimisation - arises where an employee suffers some kind of detriment as a result of relying on the equalities legislation (e.g. “don’t employ her – she sued her last employer for sex discrimination”; or “don’t give her a pay rise – she made all that fuss about women’s rights”)
• Harassment –– for the purposes of the discrimination legislation, harassment is conduct which creates an intimidating, hostile, degrading or humiliating environment (e.g. verbal or physical abuse; office banter).

           
Equal Pay

          
Separately, Equal Pay legislation, broadly, gives employees the right to enjoy equal pay for equal work.

In 2008, the National Equality Panel (NEP) was established to document the relationships between inequalities in people’s economic outcomes, such as earnings, incomes and wealth. Last month, the NEP published a report - “An Anatomy of Economic Inequality in the UK”. The report identifies a number of overarching themes, and amongst its findings, concludes that while some of the widest gaps between social groups have narrowed in the last decade (particularly between the earnings of men and women), there remain deep-seated and systematic differences in economic outcomes between social groups, including between men and women.

Equality Bill

Among the forthcoming changes in the Equality Bill are:

• making it unlawful to prevent employees discussing their pay (which, by allowing greater transparency, may go some way to addressing the inequality identified by NEP);
• allowing positive action – namely, permitting employers choosing between two equally qualified candidates to take into account under-representation of particular groups;
• widening the powers of tribunals in discrimination cases to allow them to make recommendations relating to all staff, not just the successful claimant;
• the creation of a single equality duty on public sector employers, to include duties in relation to age, sexual orientation and religion and belief. These duties will be in addition to existing duties covering race, disability and gender.

Further Information

ACAS (Advisory, Conciliation and Advice Service) is an organisation which provides a free employment advice line

DBIS (Department of Business Innovation and Skills) provides guidance on equalities issues  

EHRC (Equality and Human Rights Commission) provides information and advice on equalities issues

National Equality Panel 

Contributed by Gillian Shaw, Employment Law Solicitor, Harper Macleod LLP, Inverness and member of W@W Advisory Group