Whilst things are starting to improve, there is still a prevalent male domination in many of the major City of London institutions. Whilst we advise both men and women on sex discrimination issues, we are mainly instructed by women who have not been afforded Equal Pay or Equal Opportunities or who have suffered sexual harassment. We provide cost-effective support, especially to obtain sufficient proof during the initial investigative stage.
Overview of Sex Discrimination
The Sex Discrimination Act 1975, the Equality Act 2010 and various European Directives make it unlawful to discriminate against an employee on the grounds of their gender and this includes persons who intend to or have undergone gender reassignment. Sex discrimination can take place at any stage in the employment process or relationship including:
- Recruitment
- Pay
- Promotions
- Training
- Grievances and Disciplinary
There are four types of sex discrimination:
- Direct Discrimination;
- Indirect discrimination;
- Harassment;
- Victimisation
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 to stay in post and simply accept the situation whilst being unhappy about it, or to pursue a potential claim with the likely impact being irreparable damage in the employment relationship.
Once an employee decides the position is intolerable, it is vital to quickly investigate the prospects of a claim and 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 upon receipt of a Questionnaire, failure to do so will generally result in a Court or Employment Tribunal drawing inferences.
With the Questionnaire procedure it is important to carefully consider and draft the right questions to elicit the right information and to pressurise the employer. We have considerable experience of preparing these Questionnaires, which can literally make or break a case, and we can help in a cost effective manner.
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.
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
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.
Victimisation
An employer is guilty of victimisation if they bully the employee for bringing a complaint against the employer on the grounds of sex discrimination. For example, an employee might be denied a promotion because they were previously involved in a sex discrimination complaint.
Flexible working is not gender-specific
Traditional thinking HR professionals typically place the emphasis of flexible working on the needs of female employees, but what about the growing number of working dads? A recent 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 incongruent 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 progression within the company.
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.
Employers: train managers on unconscious bias
Mr. Peitzka’s case highlights the importance of employers and managers undergoing training on unconscious bias as well as the need to follow company policies on recruitments, promotions and appraisals during pay reviews.
While most work flexibility requests do come from female employees, reverse discriminations are expected to become more prevalent. Financially, the male earner may make less money than the female earner in a household, making financial sense for the man to become the primary caregiver.
Aside from financial reasons male employee have equal rights to care for their offspring. Any reasonable request for flexible hours from a male employee should therefore be considered, and employers should not be involved in the employee’s decision.
Government Response to Gender Bias
The government’s new Shared Parental Leave for babies born or adopted will be implemented, allowing more flexibility for working parents to care for their children. Employees should take the necessary steps to prepare for these cultural changes to avoid gender bias in the workplace.