Neil Buck: Sex discrimination? Surely not nowadays!

This story is over

At the start of September in Issue 95 my article mentioned a report by the Women and Equalities Commission that said discrimination against pregnant women was prevalent and urgent action was required.

Well it seems as though loads of sex discrimination issues and negative press reports about employers having ‘dodgy’ practices are being reported on at the moment.

For example, there have been two recent first level Employment Tribunal cases that the employers lost:

  • Easyjet had to pay out to two cabin crew members after it was found they didn’t facilitate breastfeeding arrangements well enough
  • Network Rail had to pay out £28k to a father for injury to feelings arising from discrimination and future financial loss, after they only paid him the basic statutory Shared Parental Pay amount instead of an enhanced amount that they were paying out to mothers in Statutory Maternity Pay. To address the balance going forward, sadly Network Rail simply removed the enhanced pay benefit from the mother, rather than enhancing the shared parental pay!

Then earlier this year Nicola Thorp campaigned to ban firms from forcing women to wear high heels at work, after a receptionist was asked to wear high heels or leave her job in a city firm. Taking it a step further (no pun intended!), Theresa May our new, well known to be a shoe lover, PM was asked to ditch heels at work in light of this campaign, with the aim of promoting equality at work.

Now I have just read that a London recruitment agency (Matching Models in London which describes itself as ‘an international temp agency for beautiful and talented people’) has been criticised for advertising jobs only for ‘attractive women’, including even specifying their bra size!

Of course advertising such a requirement could be in breach of the Equality Act, which made gender specific recruitment adverts illegal. In fact the circumstances in which it is lawful to discriminate when recruiting are limited – only if there is a genuine occupational requirement for a post to be filled by someone say of a particular sex, race, disability, religion or belief, sexual orientation or age would this be lawful e.g. a Mexican waiter to work in an authentic Mexican restaurant.

Hence certain requested preferences of the employer, which are not at all relevant to the work being performed, would amount to unlawful discrimination if these were used to exclude or discourage certain applicants who could otherwise perform the role. Such adverts are likely to be discriminatory on the grounds of gender, age or possibly race e.g. specifying a cup size excludes men from applying at all.

The law says that Under the Equality Act 2010, it is unlawful for an employer to discriminate against an employee because of his or her gender – a “protected characteristic” e.g. sex, race, religious belief etc. There are two types of unlawful discrimination:

Direct discrimination – where an individual is treated less favourably than another because of a certain protected characteristic. Nowadays, this type of obvious discrimination very rarely happens as most employers are aware that they can’t blatantly discriminate for such reasons e.g. not give the woman a job simply because she’s a woman.

Indirect discrimination – where an employer applies a ‘provision, criterion or practice’ (PCP) which appears to be neutral, but which actually puts those that share a characteristic protected by the Act at a particular disadvantage. Unlike direct discrimination, indirect discrimination can potentially be objectively justified by an employer IF it can be shown to be a ‘proportionate means of achieving a legitimate aim’. This is the most common type of claim against employers.

It is difficult for the majority of employers to always ensure they do the right things legally in the way they operate their business e.g. perhaps having a PCP which they don’t mean or wish to be discriminatory whatsoever but nevertheless get challenged on it by an employee once the circumstances appear to be detrimental.

That’s when employers feel so aggrieved when someone does finally challenge it – just like the father did against Network Rail in the enhanced shared parental pay claim.

The upshot of all this is that employers have to be careful at all times now and proactively avoid risk and legal costs and challenges.

Especially in light of the latest stats that have just been published showing a sustained increase in the median compensatory awards for discrimination and unfair dismissal claims (The average / mean award for a claim of unfair dismissal was £13,851 in 2015/16) with analysis suggesting the increase is likely to result from lower value claims being deterred as a direct result of the introduction of fees for bringing an employment tribunal claim.

Employees know their rights and aren’t afraid to challenge their employer on it when they feel they aren’t being treated fairly, whether the employer was actually aware of it and or consciously doing it or not. The fact is that ignorance is no defence.

In the days of social media, news spreads fast so employers need to be aware of their employment obligations and employee’s rights to not fall foul of the law. If they don’t they will have trouble one way or the other which will hurt their business, whether that be low staff morale affecting productivity, sickness and turnover rates or for example negative PR affecting trade etc.

Who’d be an employer hey?!