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What’s new in sex discrimination law?

Discrimination in the workplace is never far from the headlines. The BBC was recently accused of discrimination when a significant gender pay gap was revealed among its highest earners. With only a third of its top earners being female, the BBC could find itself facing claims of sex discrimination if those women can demonstrate that the work they do is broadly similar, of equal value and rated as equivalent to that of their male counterparts. Already several high-profile female personalities at the BBC have called on the corporation to act now to deal with the gender pay gap and we would not be surprised to see legal claims.

The BBC report has come hot on the heels of the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017, which require organisations with more than 250 staff to publish results of their gender pay gap analysis from April 2018. This will undoubtedly open the floodgates for claims of sex discrimination if those companies are reporting significant pay gaps that they are unable to explain.

Of course pay is only one area where a particular sex might be treated less favourably than the opposite sex. An employer might only offer a bonus to women and not to men; this would be direct discrimination on the grounds of sex.

Recent case law

In March, an employment tribunal upheld a claim of direct sex discrimination in Ali v Capita Customer Management Ltd. After giving birth to their daughter, Mr Ali’s wife was diagnosed with post-natal depression and advised by her doctor to return to work to help overcome her illness. To do this, Mr Ali had requested to take over the remaining period of maternity leave under the shared parental leave provision to be the primary carer. After he was told he would receive only statutory pay during this period, as opposed to the enhanced maternity pay that a female employee would have received, Mr Ali filed a claim saying this amounted to direct sex discrimination. The employment tribunal upheld his claim, commenting that the role of primary carer is a matter of choice for the parents and that Mr Ali had been less favourably treated as a man. This case is a first-instance decision and we will have to wait for an appeal court decision to provide further clarification and a binding decision.

In 2016, the Employment Appeal Tribunal (EAT) ruled on the concept of ‘subconscious’ discrimination. In Geller & Geller v Yeshurun Hebrew Congregation, a husband and wife worked together in different capacities for the respondent. Shortly after Mrs Geller became pregnant, Mr Geller was put at risk of redundancy. As the respondent did not recognise Mrs Geller as an employee, she was not at risk and she brought a claim for sex discrimination, among other things. After the respondent accepted Mrs Geller was an employee, the couple were made redundant.

One of the emerging points was the EAT ruling that direct discrimination may either be inherent from the nature of the act itself, or could be discriminatory via a conscious or subconscious driving force on the part of the perpetrator. Essentially, the EAT said it’s not enough to simply accept the alleged discriminator’s genuine belief that they did not subject the claimant to discrimination – they should consider whether the alleged discriminator had any subconscious motivation for the discriminatory act. It’s an interesting one because, even if you really do not believe you have discriminated against someone, the tribunal could find from all the facts and circumstances that you did have an underlying motivation for some form of discriminatory conduct.

Tackling sex discrimination claims

To defeat allegations of sex discrimination, it is vital that organisations have robust equal opportunities policies in place. These should also cover bullying, harassment and whistleblowing. Grievance procedures should be encouraged and staff trained to handle complaints of harassment so that any potentially discriminatory conduct can be weeded out and the appropriate action taken. It is also advisable to provide diversity and equality training to the whole workforce. All too often, we see cases where office banter has turned sinister, crossing the line and leading to one or more members of staff feeling harassed and discriminated against because of their sex.

It is important for employers to get this right so that they can be in the best possible position to head off any such allegations before they fester and result in costly employment tribunal claims. BAE Systems is still fighting an order to pay more than £360,000 in compensation to an ex-employee who won her claim of sexual harassment. As we know, discrimination compensation is uncapped; a doctor was awarded £4.5m in compensation a few years ago after successfully claiming sex discrimination, among other things.

Furthermore, Unison has successfully argued against tribunal fees in the Supreme Court. On 26 July, it was held that the fees were unlawful and the relevant regulations requiring the payment of tribunal fees have now been quashed. Those who paid fees since their introduction in 2013 will have the money refunded. This is likely to mean a rise in tribunal claims generally but certainly in cases of sex discrimination where claimants were previously deterred by fees.

Emma O’Leary is a partner at Essential Solicitors and an employment law consultant at ELAS

Added: 14-08-2017

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