GENDER DISCRIMINATION

IER EQUALITY AND DISCRIMINATION CONFERENCE

7TH OCTOBER 2014

Laura Prince, Matrix

Gender Discrimination
• Direct discrimination (s.13 EqA);

• Indirect discrimination (s.19 EqA);

• Harassment (s.26 EqA);

• Victimisation (s.27 EqA);

• Equal Pay (s.64-80 EqA).

Gender Discrimination and equal pay

• First prohibited in employment by Sex

Discrimination Act 1975; but

• Still significant issues in workplaces across the UK;

• A 2014 report by “Business Environment” found

that ¼ of women surveyed had been subject to
some form of discrimination in the workplace;

• UK has the 6th highest gender pay gap in the EU.

Direct discrimination

“A person (A) discriminates against

another (B) if, because of a protected
characteristic, A treats B less favourably
than A treats or would treat others”
(s.13(1) EqA).
Comparators

• To establish less favourable treatment

C must refer to an actual or hypothetical
comparator who has been treated more
favourably than themselves;

• There must be no material difference

between the circumstances relating to
each case (s.23 EqA).
Actual comparators; Nelson v Newry
and Mourne DC (2009)
Hypothetical comparators

•Shamoon v Royal Ulster Constabulary;

•West Sussex County Council v Austin:-

– Male manager accused of harassment by junior female

colleague;
– There had been previous complaints of harassment against
the manager but none had been proven;
– The manager brought sex discrimination claim;
– The hypothetical comparator relied upon at the ET was a
female manager who was accused of harassment by a junior
male employee;
– The EAT held this had been wrong, the appropriate
hypothetical comparator was a female manager with a
background similar to that of the Claimant, including previous
allegations of sexual harassment”.
Tainted information cases

• CLIFIS v Reynolds (2015)

• The “composite approach” was

unacceptable;

• The focus must be on the mind of the

decision maker not on the person who
drafted the report;

• Unless the decision was a joint decision.

Indirect discrimination, s.19 EqA

• “(1) A person (A) discriminates against another (B) if A applies

to B a provision, criterion or practice which is discriminatory in
relation to a relevant protected characteristic of B’s
 
• For the purposes of subsection (1), a provision, criterion or
practice is discriminatory in relation to a relevant protected
characteristic of B’s if-
– A applies, or would apply it to persons with whom B does not share
the characteristic;
– It puts, or would put, persons with whom B shares the characteristic
at a particular disadvantage when compared with persons with
whom B does not share it;
– It puts, or would put B at that disadvantage, and
– A cannot show it to be a proportionate means of achieving a
legitimate aim.
Indirect discrimination by association? CHEZ
Razpredelenie Bulgaria AD (2015)
CJEU’s decision

“the concept of ‘discrimination on the grounds of ethnic

origin’…. Must be interpreted as being intended to
apply in circumstances such as those at issue before
the referring court – in which in an urban district
mainly lived in by inhabitants of Roma origin, all
electricity meters are placed on pylons forming part of
the overhead electricity supply network at a height of
between six and seven metres, whereas such meters
are placed at a height of less that two meters in other
districts – irrespective of whether that collective
measure affects persons who have a certain ethnic
origin or those, without possessing that origin, suffer,
together with the former, the less favourable
treatment or particular disadvantage resulting from
that measure”
Impact of CJEU’s decision

• Potentially very significant;

• If indirect discrimination by association is

covered (as CHEZ suggests) the UK’s law
is currently inconsistent with EU law;

• UK Courts have an obligation to give effect

to EU law which may mean dis-applying
UK legislation.
Harassment (s.26 EqA)

“A person (A) harasses another (B) if-

•(a) A engages in unwanted conduct related to a

relevant protected characteristic, and

•(b) the conduct has the purpose or effect of-

(i) violating B’s dignity, or
(ii) creating an intimidating, hostile,
degrading, humiliating or offensive environment
for B”
Timothy James Consulting v Wilton (2014)
Related to a protected characteristic

“In my view, it is important in this context to give effect

to the words that Parliament has used and not to
substitute alternative words for them. It is also
important that the statutory language should not
become encrusted with a judicial gloss. The words
used by Parliament are that the conduct must be
“related to” the relevant protected characteristic. The
Tribunal’s task was to apply those words to the facts
of the particular case before it and that, in my view, is
precisely what it did”

Timothy James Consulting v Wilton (at paragraph 43)

Can trivial acts amount to harassment?

• Land Registry v Grant:-

“Tribunals must not cheapen the significance of
these words. They are an important control to
prevent trivial acts causing minor upsets being
caught by the concept of harassment”

• Richmond Pharmacology v Dhaliwal;

• Henderson v GMB (2014);

• Betsi Cadwaladr University HB v Hughes

(2013).
Constructive dismissal

“The Tribunal must act in accordance with law. In

my judgment, the Respondent is correct to submit
that the act of constructive dismissal does not in
itself fall within the meaning of harassment as
defined by the Equality Act. It was therefore not
open to the Tribunal as a matter of law to find that
the constructive dismissal in this case was in
itself an unlawful act of harassment”.

Timothy James Consulting v Wilton at paragraph

58.
1955, London
2014, London
 Why has pay equality not been achieved?

• Deep seated problems related to discrimination, job

segregation, and the impact of child caring responsibilities;
 
• The law is weak and overly complex; relying on individual
employees to bring claims in tribunals to address what is
widespread and systemic underpayment;

• A lack of transparency around pay.

The Equality Act, Equal Pay: Key Provisions

Part 5, Chapter 3 (sections 64-80- mostly replicate existing system)

• S. 65 – Equal work (“like work”, “work rated as equivalent” and

“work of equal value”)
• S. 66 – sex equality clause
• S. 69 – material factor defence
• S. 70 – exclusion of sex discrimination provisions
• S. 71 – hypothetical comparators
• S.73 – maternity equality clause
• S.77 – pay secrecy clauses
• S.78 – gender pay gap information
• S.79 – comparators
• S.129 – time limits
Gender pay gap reporting

• “Regulations may require employers to

publish information relating to the pay of
employees for the purpose of showing
whether, by reference to factors of such
description as is prescribed, there are
differences in the pay of male and
female employees” (s.78 EqA).
Government action so far

• Initially Government favoured a voluntary

reporting initiative;

• 250 companies signed up to the voluntary

reporting initiative;

• Only five companies have actually

published gender pay gap information
under this initiative.
What’s next
• Regulations will be in force by spring 2016;

• Consultation on content of the regulations

was concluded in early September 2015;

• Likely content of regulations still unclear in a

number of respects;

• Watch this space!

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