Home > yourrights > right to receive equal treatment/sex discrimination > sex discrimination
> Sex Discrimination in Employment and Training
Sex Discrimination in Employment and Training
Employment
It is unlawful for an employer to discriminate against you on the grounds of your sex in any of the following ways:
- Refusing to consider you for employment.
- Refusing to offer you employment.
- Offering you employment on less favourable terms.
- Refusing to make provision for you to be trained, or treating you less favourably in providing access to training.
- Refusing to promote you or transfer you to another job, or treating you less favourably in providing access to promotion or transfer.
- Giving you less favourable employment benefits.
- Dismissing you or causing you any other detriment.
- Subjecting you to harassment.
Employment is defined as work under a contract of service or apprenticeship, or a contract personally to do any work. Therefore it includes employees, those defined as ‘workers’ and even some self-employed people. There is protection for contract workers and those who work for employment agencies. There are also special provisions in relation to office-holders, police officers, barristers and advocates, partnerships, those undergoing vocational training, and a range of other situations.
An employer is liable for any unlawful discriminatory acts (other than criminal acts) committed by his/her employees in the course of their employment, regardless of whether it was done with the employer’s knowledge or approval. The employer may also be liable for unlawful acts committed by an employee outside the course of their employment if the employee was acting on express or implied authority. However, in general, an employer will not be liable for the acts of a third party such as sexist abuse by a customer or client, unless the failure to prevent that abuse was itself on discriminatory grounds. Anyone who knowingly aids another’s unlawfully discriminatory act is also liable.
An employer can avoid liability for unlawful acts committed by employees if the employer can show that he or she took reasonable steps to prevent that employee from acting unlawfully. Reasonable steps would include things such as the development and publication of equal opportunities policies and the provision of staff training on these policies. Where the employer is able to show that he took reasonable steps and should not be liable, the employee may still be personally liable.
Protection extends to post-employment discrimination if such discrimination, which includes subjecting the person to a detriment or to harassment, ‘arises out of and is closely connected to the relationship’. One example of this type of discrimination is where an employer refuses to give a reference to a former employee.
Vocational Training
It is unlawful for the provider of vocational training to discriminate against a person on grounds of sex in any of the following ways:
- Restricting access to training.
- Offering training on terms less favourable than for other people.
- Terminating the training.
- Subjecting that person to any other detriment or harassment.
The SDA provides an exception where the sex of the employee is a genuine occupational qualification. This allows an employer to refuse to consider an application or offer employment on the basis of the sex of candidate, or to discriminate in the way that training, promotion and transfer opportunities are provided. However the exception does not allow the offer of employment to be on less favourable terms or dismissal or subjection to some other form of detriment because of the sex of the employee. Nor does it provide a defence to harassment.
The sex of the employee is only capable of being a genuine occupational qualification in certain restricted circumstances, these include:
- Jobs which rely on a particular sex for their physiology (with the exception of physical strength or stamina) e.g. male or female models, or for authenticity e.g. actors.
- Jobs involving physical contact or issues of decency and privacy (e.g. care assistants or toilet attendants).
- Where the job involves living or doing work in a private home, and physical or social contact or intimacy is involved (e.g. live in nanny, carer).
- Jobs in single sex establishments such as hospitals, prisons, or care homes, where it is reasonable for the job to be held by a particular sex.
- Jobs involving provision of personal educational or welfare services to vulnerable persons (e.g. rape counselling, but this provision does not normally apply to teachers in single sex schools).
- Jobs requiring persons to live-in, where it would not be reasonable to require the employer to provide separate accommodation or facilities (e.g. ships, submarines)
