Gender Discrimination
Sex discrimination legislation covers discrimination on the grounds of sex, pregnancy, maternity, marital status, civil partnership status or gender reassignment. A direct discrimination would occur where a woman is dismissed because of pregnancy or maternity leave. Indirect discrimination could occur if a job was stated to be available only to somebody able to spend long periods of time away from home. This could be justified if this is strictly necessary to the role e.g. international sales person. Under certain limited circumstances, sex may be a genuine occupational requirement.
The law makes sexual harassment and harassment related to sex unlawful in employment or vocational training. This can include insensitive jokes, display of explicit material, innuendo or lewd comments or gestures. It can also include the circulation of lewd emails, even if not actually being sent to the person being harassed.
Employers are required to treat married employees and employees from civil partnerships the same way. This means that benefits such as healthcare available to spouses, must also be made available to a civil partner. Employers may give benefits to employees who are married or in civil partnerships without necessarily extending them to those who are unmarried and not in civil partnerships.
Equal Pay
Men and women are entitled to equal pay for work of equal value. Pay includes all terms and conditions and not just salaries. Therefore, discrimination in relation to fringe benefits may infringe the legislation. It may be possible to justify differences in pay as long as they can be shown that gender is not a factor. Equality legislation implies certain contractual terms as to equality between men and women into the employment contact over and above the general anti-discrimination provisions.
The principle of equal pay for men and women is set out in the EU Treaty. Under the Equality Act, every employment contract is deemed to include a clause providing for equality in relation to gender discrimination.This applies to pay, remuneration and terms and conditions.
It implies that a male’s or female’s employment terms and conditions are not to be less favourable that of a comparator of the other gender. If they are different, they are deemed to be modified accordingly.If one gender does not have the term or benefits of the other then the contract the modified to include that term.The equality clause can be enforced in the same way as any other term and condition. The full measure of damages can be recovered
The Equality Act provides for equality between a woman on maternity leave and a woman not on maternity leave. There is no requirement to pay a woman on maternity leave In effect, the implied clause requires the application of a pay increase and improved terms and conditions which she would have received but for being on maternity leave.
Equal Value
A real comparator is required. If there is no comparator, a claim may be brought only (in the unusual case) where a person can otherwise show evidence of direct sex discrimination.
The equality clause applies to each term of the contract. It does not matter that the over all contract may be equally or more beneficial than that of the comparator. The work done by the comparator need not be contemporaneous. It may be a predecessor. This may occur where a man leaves or is dismissed and a woman is taken on at a lower pay rate.
Work is deemed is equal if it is like work, rated as equivalent work or of equal value. Like work is defined such that the claimant and comparator’s work are the same or broadly similar and such differences as there are between their work are not of practical importance in relation to the terms of their work.
On a comparison of work for the above purposes, it is necessary to have regard to the frequency with which differences between the work occur in practice and the nature and extent of the differences.The applicant’s work is rated as equivalent to the comparator if a job evaluation study gives it an equal value to the comparator’s job.
An analytical process is required . The jobs should be broken down into elements and scores or comparisons should be given or made for each, producing an overall comparison.Work is of equal value if it is equal to the comparator’s work in terms of demands made on the applicant by reference to factors such as efforts skill and decision-making.
The claim is to do work of equal value. It allows the applicant to compare with a person of the other gender elsewhere in the organisation even he or she is doing the same work as persons of the same gender and has like terms and conditions to them.
Comparator
The comparator may be made the from a range of places and circumstances. The person need not work at the same time, so that a predecessor might be a comparator. A successor may be a comparator. The comparator may be employed by the employer or an associated employer of the applicant The comparator may work at the same premises the same establishment or an associated establishment.
If the comparator does not work at the same establishment he may still be a comparator if the circumstances are sufficiently similar. The employer need not be identical but the employment may be sufficiently common such as where persons are employed by different councils under the same regime.
The Equality Act sets out a method by which the tribunal may assess whether work is of equal value. An independent expert can be appointed . A job evaluation study may be undertaken by the parties. However, there may be conflicting expert evidence.
Historically equal pay claims required an actual rather than a hypothetical comparator. This principle has been modified slightly by the Equality Act 2010.The exception does not apply where the treatment would constitute discrimination under the provisions dealing with direct discrimination.
The Equality Act invalidates clauses which require pay levels to be kept secret for this purpose. A disclosure by a colleague may be made or received for the purpose (only) of ascertaining whether there is a connection between pay and a person having or not having a characteristic protected by discrimination. It does not allow other disclosure and the clause takes effect other than in this limited respect.
Claim and Defences
If it is shown in a claim that the applicant has been paid or is treated less favourably for like work, work rated as equivalent or work of equal in value to that of s person of the other gender it is presumed that the difference is because of sex. The employer may rebut this position by showing genuine material factors material factors that are relevant and significant and do not themselves comprise direct or indirect discrimination on the grounds of sex.
A factor is material if it is significant and relevant. This embraces the range of personal and surrounding circumstances which might justify why a person should be paid more than the other for essentially doing the same job. It may be due to factors such as
- supply and demand at the relevant time decay was agreed (market forces)
- geographical considerations e.g. London versus other parts
- performance -related pay
- shiftwork compensation
- productivity
- length of service
- experience
- red circling/pay protection (due to a historical circumstances such as a reorganisation)
The cost burden of equalising pay is not a material factor by itself
A claim can be made to an employment tribunal for breach of the equality clause. A declaration may be sought.The claimant may formally put questions to the employer directly in writing. They are admissible as evidence in a case brought under the legislation inferences may be drawn from a failure to respond.
Arrears due up to 6 years may be ordered to be paid. This may be extended if there was concealment.
The claim must generally be brought within six months of appointment or the end of the contract. Where there has been concealment, the period of six months begins when the position is discovered. Where there is incapacity the period begins when the incapacity ceases. Where there is a serious of short-term fixed contracts, the period commences with stable employment period begins or when the stable working relationship ended.
