Sex discrimination can be suffered by anyone
Discrimination is usually concealed and always denied. We do uncover the facts. Discrimination takes many shapes – many people think it only outlaws unwanted sexual advances. However, sex discrimination in the work place goes much deeper than that and includes failure to train, promote and the very common discrimination of pay policy.
The vast majority of sex discrimination cases relate to women but we are seeing cases where men have suffered sex discrimination because they are male.
We have summarised below:
How the discrimination laws work
Without doubt, the discrimination laws in the UK need an overhaul being complex with plenty of tricky areas. But, cases are won, or more commonly settled out of court, using the powers of the Sex Discrimination Act 1975, the Equality Act 2010 and various European Directives. It is unlawful in the UK to discriminate on the grounds of their gender (including gender reassignment).
Sex discrimination includes treating someone less favourably in various ways including:
- Promotions; and
There are four types of sex discrimination:
- Direct Discrimination;
- Indirect discrimination;
Direct Sex Discrimination
Direct sex discrimination occurs if an employee is treated less favourably because of the fact they are a man or woman in pay, promotions or other conditions.
Some claims for direct discrimination can be straightforward but often, an employee will have a strong suspicion that she or he is being treated less favourably but has no proof. In such situations, the employee has a dilemma of whether to stay in the post and simply accept the situation whilst being unhappy about it, or to pursue a potential claim with the likely impact of there being irreparable damage in the employment relationship.
Investigating the strength of a sex discrimination case
Once an employee decides the position is intolerable, we need to investigate the prospects of a claim. The best weapon for doing so tends to be via an Equality Act Questionnaire. Whilst an employer may refuse to co-operate, in full or in part failure to do so will generally result in a Court or Employment Tribunal drawing negative inferences.
Equality Act Questionnaires need to be strategically considered. You have to ask the right questions to elicit the right information and to pressurise the employer. An Equality Act Questionnaire can literally make or break a case. manner.
Direct sex discrimination defence
The only defence for direct sex discrimination is if the employer can show that the discrimination is justified because of a genuine occupational qualification i.e. it is essential to the nature of the job either: to preserve privacy, the physiology of the employee or for the purposes of authenticity. There are very limited circumstances where this defence can be used.
Indirect Sex Discrimination
Indirect sex discrimination takes place where an employer applies a particular provision to the entire organisation but this has the unintentional effect of putting one sex at a disadvantage over the other.
Indirect sex discrimination defence
The only defence to indirect discrimination is for the employer to show that the provision was a proportionate means of achieving a legitimate aim. This is determined by comparing the degree of discrimination to the aim of the provision whilst bearing in mind any alternative methods available to the employer for achieving the same aim.
Harassment takes place where an employer engages in unwanted sex related conduct with an employee which has the effect of violating the employee’s dignity or creating an intimidating or offensive environment. Harassment can take a number of forms and includes verbal, non-verbal and physical conduct.
An employer is guilty of victimisation if it bullies the employee for bringing a complaint against the employer on the grounds of sex discrimination. For example, it is illegal for an employee to be denied a promotion because they were previously involved in a sex discrimination complaint.
The pay gap
One of the most glaring forms of sex discrimination can be seen in the pay gap. We see marked differences in professional services firms, especially lawyers and accountants, between the pay for men against women. Employers dress this up using sometimes quite clever camouflage but that does not mean that women are paid considerably less than men. A popular camouflage is to deliver pay via discretionary bonuses and in the city of London it is estimated there is a 35% gap on bonuses.
What can be done about a pay gap?
Usually the problem is lack of evidence. Good evidence needs to be built up over time. No one wants to rock the boat but getting those top jobs is not all about hard work. We find many women find it hard to play the game – and why should they as others are not under such pressure? But, when it comes to demanding a pay rise or promotion to match that of typically a male you need to be armed.
Easy steps to remember in protecting your position
- In many cases the pay gap starts early on in the career. For example, in some law firms the males are invited to the networking events whereas the females are left behind to meet deadlines. If that is happening make sure you mention it to your manages and most importantly follow up by email. Networking is a part of training and females should be given equal opportunities.
- Promotion is another huge area where discrimination starts early on. If you think you should have been considered there needs to be evidence of you making your case. A poor performance review which is not justified should be challenged and a record kept.
- Pay rises do not fall from the sky for anyone. Working hard and keeping your powder dry does not always equate to a pay rise. Very generally speaking men are much better at negotiating pay. It is second nature for them.
- We find that unclear reporting lines can make establishing a sex discrimination case much harder. No one wants to take responsibility. The answer is to remember clear reporting lines should be agreed at all stages of the career journey.
Old school thinking
Traditional thinking typically place the benefit of flexible working in the hands of female employees. But, what about the growing number of working dads? A recent Employment Tribunal case brings to light the risks associated with this traditional mind set.
PricewaterhouseCoopers (PwC) was taken before the employment tribunal by one of their management employees from their Cardiff location. Mr. Peitzka had asked for work flexibility due to a family situation, stating that he would like to help with his daughter’s care.
Manager warns male employee about flexible working
His manager, Mr. Lewis, responded by saying that his position and responsibilities in the company were incompatible with flexible working and his request was denied. Mr. Lewis, who had been supportive and understanding when several women on his staff had requested flexible working for issues stemming from childcare, also warned Mr. Peitzka that such a request would affect his career progression.
After his divorce, Mr. Peitzka’s family moved to Bury St Edmonds and he again asked for a change in hours that would allow him time to visit his daughter. After some time and negotiations, Peitzka was given a reduced schedule but with unusual conditions attached, including a longer trial time.
Allegedly, his manager was reported as saying Peitzka “needed to make up his mind whether he was an Arthur or Martha”. He also avoided Mr. Peitzka during social engagements and during the company’s 2012 performance appraisals, Lewis deliberately failed to utilize PwC’s newly implemented 360-degree appraisal system to review Mr. Peitzka. Lewis’ decision to bypass this appraisal system resulted in lower performance scores for Peitzka than in previous years.
The tribunal concluded that Mr. Lewis has appraised Mr. Peitzka incorrectly and it was determined that PwC had indeed discriminated against the employee based on gender and the flexible working request.
The unconscious bias
Mr. Peitzka’s case highlights unconscious bias from those immersed in an old fashioned way of thinking.
While most complaints around flexible working requests come from female employees, we see more and more men complaining of unfair treatment.