DAVID ROYDEN - EMPLOYMENT SOLICITOR
UK EMPLOYMENT LAW

David Royden is a Partner with Laytons Solicitors and Head of Employment Law, Manchester, UK

Laytons Solicitors is a national law practice specialising in all aspects of Company and Commercial Law

Laytons Solicitors, 22 St John Street, Manchester M3 4EB.
Tel: +44 (0) 161 834 2100
Fax: +44 (0) 161 834 6862

Offices at London, Manchester and Guildford, UK

 

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Dismissal on grounds of Unlawful Discrimination

Where dismissed employees have made a complaint under the legislation relating to discrimination on grounds of sex, race, disability, religion or belief or sexual orientation and are also eligible to make a complaint of unfair dismissal they should do so, even if it is thought that the reason for dismissal was an unlawful act of discrimination.

SEX DISCRIMINATION

In employment it is unlawful to discriminate against women, men or married persons in recruitment, promotion, access to benefits and dismissal.

There are two kinds of sex discrimination: direct and indirect.

DIRECT DISCRIMINATION

An employer discriminates directly against a person if, on the grounds of that persons sex, the employer treats that person less favourably than another. To establish discrimination it is not sufficient to show certain treatment is different, it must be shown to be both:

  • less favourable than the treatment which was (or would be) accorded to a person of the opposite sex, and
  • less favourable because of the gender of the person involved.

INDIRECT DISCRIMINATION

An employer may discriminates indirectly discriminate against a person if the employer imposes a requirement or condition which seems to affect men and women equally, but which in practice disadvantages a far greater proportion of one sex than the other. However the following factors also need to be present to constitute indirect discrimination:

  • the requirement or condition is applied equally to both sexes
  • the proportion of one sex who can comply with it is considerably smaller than the proportion of the other sex who can comply
  • the individual suffers because he or she cannot comply
  • the employer cannot show the condition or requirement to be objectively justifiable irrespective of gender

By way of example, if an employer imposes a requirement that employees should be able to lift heavy weights (such that the proportion of women who can comply is considerably smaller than the proportion of men who can comply), such a requirement would be discriminatory if applied to typists, but probably not if applied to warehousemen.

Are there any exceptions permitted?

An employer may lawfully discriminate in the arrangements he makes for selecting employees for a job where being a man or woman or married is a genuine occupational qualification for the job and discrimination against the other sex is permissible. Examples would include occasions where either a woman or a man is needed for reasons of authenticity or for a specific purpose such as a modelling or acting role or for reasons of privacy and decency.

It is also permissible to engage in Positive Action which is designed to help women compete on equal terms in the labour market (e.g. running a single sex training course). However, selection for jobs should always be made on merit.

What is Sexual Harassment?

It is now well established that sexual harassment is a serious form of direct unlawful discrimination. Sexual harassment means unwanted or uninvited conduct of a sexual nature, or other conduct based on sex effecting the dignity of women and men at work. This can include unwelcome physical, verbal or non-verbal conduct.

Harassment may be deliberate or unconscious, open or covert, direct or indirect, an isolated incident or repeated action. It may also include, in certain circumstances, off duty conduct. It will not necessarily be a defence for an employer to argue that such incidents consist of words or behaviour that might be claimed to be “common place” or intended as a joke.

Examples of harassment include: -

1. Insensitive jokes and/or pranks;
2. Lewd comments about appearance;
3. Unnecessary body contact;
4. Displays of sexually offensive material, for example pin-ups;
5. Requests for sexual favours;
6. Speculation about an employee’s private life and/or sexual activities;
7. Threatened or actual sexual violence;
8. Threat of dismissal, loss of promotion etc. for refusal of sexual favours.

Whilst the above list gives examples of sexual harassment, harassment takes many forms, from relatively mild sexual banter to actual physical violence and the above examples are not exhaustive.

Harassment of an individual in this manner because of their sexual orientation (i.e., because they are homosexual, transsexual or undergoing “sex change treatment”) will also be regarded as sexual harassment.

Sexual harassment constitutes unlawful sex discrimination and employers may be liable for discriminatory acts of this nature carried out by employees unless the employer can show such steps were taken as were reasonably practicable to prevent the employee from doing that kind of act during the course of his or her employment. The disciplinary procedure should always therefore be invoked where there is a complaint of sexual harassment in order to allow the matter to be investigated.

What are the penalties involved for Sex Discrimination?

If an Employment Tribunal finds that a complaint of sex discrimination is well founded it can make any of the following orders:

  • Declaratory Order - an Order declaring the rights of the employee and the employer in relation to the act complained of
  • Compensation - an Order requiring the employer to pay compensation to the employee. This may include damages for injured feelings and compensation for loss of opportunity in the labour market going beyond the actual loss of wages. There are no limits on compensation in the Industrial Tribunal for sex discrimination.
  • Recommendation of remedial action - a recommendation that the employer take within a specified period action to alleviate or reduce the effect on the employee of any act of discrimination complained of.

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