This article briefly explains what sex discrimination is, what your rights are if you are being discriminated against at work because of your sex, and what practical actions you can and should take in the circumstances.
It illustrates what the legal framework for sex discrimination means in practice by providing plenty of real life examples of sex discrimination in the work place.
It complements our main article on discrimination at work where you will find more about the concept of discrimination and the different types of discrimination that are recognised in law and mentioned briefly below.
See also the helpful guides section at the end of this article for further details of our other articles and letter templates on aspects of discrimination.
This guide covers:
What is sex discrimination?
The Equality Act 2010 set out what is meant by sex discrimination. In particular, it:
- defines ‘sex’ as meaning male or female, or a group of people of the same sex, like men or women, boys or girls.
- protects against ‘discrimination’ or less favourable treatment which is carried out because you have what’s called a ‘protected characteristic’, of which there are several. Sex is one of the protected characteristics specified in the legislation.
- provides protection for other related characteristics including sexual orientation and gender reassignment although these are outside the scope of this article.
Types of sex discrimination and examples
The kinds of discrimination recognised by the Equality Act are:
- Direct discrimination
- Indirect discrimination
These apply to discrimination against anyone, irrespective of which characteristics they have.
Direct sex discrimination
Direct sex discrimination means treating you less favourably because of your sex.
Many people have an unconscious bias towards males or females and that will often lead us to make stereotypical assumptions about the sexes. In most cases those assumptions will be benign, but a stereotypical decision can result in unlawful discriminatory conduct, as the following examples show.
Your employer failed to consider you for a promotion because the role involved frequent overseas travel and they assumed you wouldn’t want to do this role because of your young family. It would be sex discrimination to assume that a woman who has young children could not travel for work.
Similarly it would be discriminatory to assume that part-time jobs are primarily for women if a man asked to work part-time but his request was declined without a good business reason. The man was aware that many female peers worked part-time.
Indirect sex discrimination
In practice, this usually refers to a way of working that is applied to everyone (so it’s not direct, like the category above) but it does put you at a disadvantage because of your sex.
In any claim you might bring against your employer it is important to show that the policy, criteria or practices at your place of work are widespread and disadvantage a protected group because of their sex, those who share the protected characteristic (i.e. men or women) and you in particular.
Your employer has a policy that requires all staff to work full-time. Whilst this policy applies to all employees, it probably disadvantages a woman as she is more likely to have caring responsibilities.
Similarly, if you are a woman with school-aged children who normally takes her children to school, you are going to be more disadvantaged than your male colleagues if your employer changed working hours so that you had to start work early, before schools opened.
Generally speaking, there are two types of harassment:
The first type is the same for all people with protected characteristics, and that’s where someone says or does something that makes you feel humiliated, offended or degraded because of your sex.
A female colleague sends a series of messages in which she disparages men – and other female colleagues engage in similar conduct.
A male colleague keeps making lewd jokes about women as sex objects. Your other male colleagues – and some of the females as well – think the jokes are funny and laugh, but you find them offensive and degrading to women.
The second type is where someone makes you feel humiliated, offended or degraded because they treat you in a sexual way.
This is ‘unwanted conduct of a sexual nature’ and includes verbal and physical treatment. It can be in the form of sexual comments or jokes, touching, or assault and also covers sending emails of a sexual nature.
You have made it quite clear to your line manager that you are not interested in him sexually. However, at monthly appraisal meetings, he keeps telling you how good he reckons you would look with a whip and dressed in black leathers.
A colleague makes repeated advances asking you out and then starts to send a number of direct messages in which he makes remarks full of sexual innuendos.
Victimisation is where you are treated less favourably because you have previously complained about or witnessed sex discrimination and you are treated differently because you complained about or refused to put up with harassment.
Following the series of messages mentioned in the previous example, you tell your colleague that you find his messages sexist and offensive. The following Friday evening, you notice that your colleagues are going out for drinks after work and unusually you are not invited.
You are helping a colleague with her claim of sex discrimination and make a witness statement for the employment tribunal hearing. You subsequently get badly treated by your employer or even dismissed because of your action
What are your rights in cases of sex discrimination?
As mentioned earlier, your rights are protected by the Equality Act 2010 and if you have been subjected to unlawful treatment, you have the right to bring a complaint in the employment tribunal.
Unlike claims for unfair dismissal, there is no length of service requirement so it doesn’t matter if you haven’t been working for long or indeed if you were subjected to sex discrimination during the recruitment process.
You have to take formal action to commence employment tribunal proceedings within three months less one day of the unlawful treatment, or if there are a series act of acts of sex discrimination, the last act. You can read more about time limits for making employment tribunal claims here.
A tribunal will hear the case by listening to your evidence, and your employer’s defence. If the tribunal concludes that you have been subject to sex discrimination then it has the power to make recommendations and identify measures to prevent such discrimination in the future.
The tribunal will also award compensation for injury to feelings and for any financial loss caused by the unlawful treatment. It is a long and complex process. In most cases, the parties will resolve matters long before a final hearing.
We always recommend that clients look at various dispute resolution options, such as those outlined in our related ‘without prejudice’ letter examples and templates.
What to do if you have been subjected to sex discrimination
Your main options include the following;
This option will depend on the severity of the treatment. If it was a one-off incident, you may feel comfortable raising the concern directly with the person who treated you differently.
Alternatively, you can raise a complaint informally with your (or their) line management. Hopefully, a local solution can be found, an apology will be offered and no further action will be necessary.
Your employer will have a grievance procedure and it will be necessary to review this and identify your concerns in writing. This will usually be a two-step process where your employer will listen to your concerns and will notify you in writing if they uphold your complaint. If they do not agree or uphold your grievance, they should give you a right of appeal.
Don’t get disheartened if they don’t uphold your grievance. Experience tells us that employers rarely agree with employees in such circumstances. This is for lots of reasons, but mostly as they fear the consequences of accepting responsibility.
See our examples of grievance and grievance appeal letters to help you write your own.
Nearly all employment disputes are heard by an employment tribunal. A claim must be submitted using an employment tribunal application form (ET1) setting out the case and the causes of action claimed.
Once the employer has provided their defence, the tribunal will list a hearing and set directions for the case management of the case. This is often a long process and you should expect it to take at least 26 weeks for the case to come to the tribunal. In some cases, it can be as long as 18 months to 2 years.
The tribunal will review documents and hear evidence from witnesses and based on the facts presented they will make a decision about whether or not there was sex discrimination and the amount of compensation that you should be paid.
It is a long and legally-technical process and whilst some people represent themselves, most will benefit from having experienced representation.
See more about what happens in employment tribunal cases in our main guide to employment tribunals and other articles on this website about the different stages of making an employment tribunal claim. These are listed at the end of this article.
How to prove sex discrimination
As in all areas of employment law, to succeed in an employment tribunal, you need to have good evidence to prove your case.
Sex discrimination cases are no different. Generally speaking, the burden of proof starts with you proving facts that show discriminatory conduct or at least show an inference of discrimination.
After that, it usually passes to the employer to disprove the allegations or show there was an innocent or non-discriminatory explanation for the treatment.
We often see employers argue that sexual harassment, for example, was consensual or that it was workplace banter. Quite clearly you can’t consent to being humiliated, offended or degraded.
You may have text messages or emails that show that you didn’t invite such treatment. In other cases, it may not be quite so clear cut and it may be one person’s word against another.
You might also have emails/ messages that show sex discrimination, particularly in cases of harassment. It is important that you preserve them as this will be important evidence to prove discriminatory conduct and in serious cases this may need to be provided to support a police or regulatory investigation.
Top TipsNicola Welchman
Make a record of all events and keep this as a chronology or diary of what happened
Write down a note of a particular conversation as soon as possible after the incident and send it to yourself as an email. This will ensure that there is a timestamp for the event and it will defeat any argument that says you wrote it long after the incident
Take screenshots of offensive emails and text messages – particularly if your employer has a rule about not forwarding work emails to personal accounts
Ask witnesses to confirm in writing what they saw or heard
It may be necessary to record conversations but there can be a question of admissibility of such recordings and also could lead to liability under RIPA 2000 (the Regulation of Investigatory Powers Act) if you intend to make the conversation available to others.
See here for more information on covert recordings. Also see our main article on evidence gathering for employees’ work disputes and legal cases.
Finally, to repeat our earlier reminder (because it’s worth repeating!): Remember to keep strictly within the time limits that apply for submitting a tribunal claim which is three months less one day from the discrimination.