Sex discrimination in the workplace - what every woman needs to know

The Flexible Working Regulations 2002
These (more recently introduced) Regulations enable parents with a child under six to request flexible working, and places a duty on employers to both consider such requests seriously, and follow a strict procedure in assessing the request. When assessing requests employers can only reject them on the basis of 'good business reasons'.

Despite the large numbers of women in employment and legislation which seeks to protect them, women are still subject to unlawful discrimination. It's important that each of us is aware of our rights at work.

What is Discrimination?

There are four different types of sex discrimination: direct discrimination, indirect discrimination, discrimination by harassment and discrimination by victimisation.

Direct discrimination
Direct discrimination is where an employer treats a woman less favourably than they would a man on the grounds of her sex, marital status or pregnancy/maternity leave. Examples include women being selected for redundancy, overlooked for training or promotion, or excluded from meetings because they are women.

Direct discrimination is not uncommon but it is rare for the discrimination to be obvious. Employers will often try to ensure that their actions appear lawful.

Indirect discrimination
Although more subtle than direct discrimination, indirect discrimination is equally damaging and occurs when an employer applies a 'provision, criterion or practice' ('PCP') equally to all staff but which puts women at a particular disadvantage when compared with men.

It will be unlawful discrimination if the employer cannot show that there are genuine business reasons for the PCP and there is no other reasonable alternative to the PCP.

A common example of indirect discrimination is the requirement of employees to work full time. Due to childcare responsibilities women are less likely to be able to work full time than men, meaning they are at a disadvantage.

In this situation an employer would have to show that requiring an employee to work full time is a proportionate way of achieving a legitimate aim. There would need to be a clear business need for and no other reasonable alternatives.

Often with this type of discrimination, employers do not realise that they are discriminating because it can be unintentional. However indirect discrimination is unlawful, regardless of whether it is done on purpose or not.

Harassment
Harassment is the use of offensive or intimidating behaviour, which aims to or has the effect of humiliating, undermining or injuring the recipient. Unwanted verbal, non verbal or physical conduct of a sexual nature is also a form of harassment as is treating a woman less favourably following her rejection of the unwanted conduct.

Harassment can occur at work or at a work-related setting, for example at a company social event or off-site training. Examples include the use of sexist or derogatory language and unwelcome remarks or physical contact.

Victimisation
If an employer treats you less favourably than other employees because you tried to make, or made, a complaint of discrimination their actions can amount to victimisation and will be unlawful.

What to do?

If you feel that you have been discriminated against the first step is to raise the matter informally with your manager or HR representative.

Remember that the law protects your right to equal treatment, including after you have made a complaint. If it is not resolved, the next stage would be to submit a formal grievance in line with your employer's grievance policy or your staff handbook and then give your employer time to respond.

We would recommend that you normally allow your employer 28 days to respond to your complaint. If they do not do so within this time period, then the next step would be to seek advice and consider bringing a claim for sex discrimination in the Employment Tribunals.

You must generally bring a claim to the Employment Tribunal within three months of the discrimination, regardless of whether or not your employer has dealt with your grievance in that period. The Employment Tribunals have very strict deadlines so you should seek specialist advice as soon as possible.

Leyla Razavi is a solicitor in the employment team at Russell Jones & Walker.
www.rjw.co.uk

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