Sex discrimination

07 February 2002 by
Sex discrimination

Matthew Tom, employment law specialist at solicitors Tarlo Lyons, examines sex discrimination in the workplace.

The problem

When considering someone for promotion to your vacant head chef position, you decide that a particular male employee has shown the greatest commitment. He has regularly worked voluntary overtime shifts and covered for absent colleagues. On this basis, he gets the job.

However, one of your female employees, who has a young family, complains that, because of her childcare commitments, she could not do overtime and argues that for you to award the job to her male colleague on this basis is sex discrimination.

The law

This situation is covered by the Sex Discrimination Act 1975 as "indirect" sex discrimination because, although the relevant factor in the decision seems to be gender-neutral (that is, willingness to work extra shifts), in practice it is harder for women to satisfy it than men, because statistically more women than men have childcare responsibilities.

Previously, to establish indirect sex discrimination, an employee had to prove that the employer imposed a "requirement or condition" that was harder for one sex to satisfy than the other. Since 12 October 2001, however, this has been changed to "provision, criterion or practice", which encompasses more informal working practices as well.

An employer can defend an indirect sex discrimination claim by proving that there is an objective balance between the discriminatory effect of the provision, criterion or practice and the reasonable needs of the business. Financial cost will be relevant, but it will be just one factor to be considered, along with organisational requirements, effect on employees, etc.

Expert advice

In this case, the selection of the male employee for the position of head chef has been decided on the basis of his having demonstrated more "commitment" than his female colleague, without considering the reasons why she has worked less overtime. She may well complain that there has never been any actual "requirement or condition" to work overtime, but that this now seems to be a relevant "criterion" for consideration for promotion.

The recent change to the law may come to the female employee's assistance in this case. Previously, she may have had difficulty in establishing that there was a "requirement or condition" to work overtime in order to be considered for promotion. However, she probably could now show that the overtime issue qualified as a "criterion" for promotion.

Possibly a defence of "objective justification" could be established for using willingness - or, more accurately, ability - to work overtime as a basis for the decision. However, a tribunal may well enquire whether a willingness to provide cover for missing staff is even a relevant consideration at all, given the seniority of the position.

Beware!

There is no maximum compensation for sex discrimination, whether direct or indirect. In the above case, the female employee could claim that, if she had not been the victim of unlawful discrimination, she could be earning a far higher salary. She may, therefore, have a claim for the difference between her salary and the head chef's salary.Alternatively, she may decide to resign and claim constructive dismissal, claiming that your decision has fundamentally breached the trust and confidence of the relationship. She could then claim for loss of her current salary, as well as the loss of the chance to earn the head chef's salary. As a mother of young children, it may be some time before she is able to find work again, so her loss may be considerable.

Checklist

  • Examine your working practices to analyse what "provisions, criteria or practices" you are actually operating.

  • Consider whether any of these has a disproportionate impact on either sex.

  • If so, consider whether they are objectively justifiable in terms of business need, etc.

  • If you are unsure about the impact a certain practice may have, or whether it is justifiable, take advice.

  • Always write it down. If you can show an employment tribunal that you genuinely directed your mind to the issue before a complaint arose, your chances of defending a claim will be greatly improved.

Contacts

Tarlo Lyons Employment law and industrial relations helpline: 020 7396 5100

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