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Law guide

Sex discrimination and equal pay

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Sex discrimination and equal pay

The 1976 Sexual Discrimination Order (Northern Ireland) provides that your employer can't treat you less favourably than others because of your sex. The Equal Pay Act (Northern Ireland) 1970 ensures that all employees receive equal benefits for equal value work.

Sex discrimination

Sex discrimination includes discrimination on the basis of:

  • Sex
  • Marital status. You will be protected against discrimination on this ground if you are married, but not if you are single.
  • Civil partnership status. You will be protected against discrimination on this ground if you have entered into a civil partnership, but not if you are single.
  • Gender reassignment. This is the process of changing one's physiological and other characteristics relating to one's particular sex to that of the opposite sex, under medical supervision. The protection covers you irrespective of whether the gender reassignment has been completed. It would also be unlawful if you were discriminated against because are undergoing or intend to undergo the gender reassignment process.
  • Pregnancy and maternity leave.
Sex discrimination laws protect you whether you are an employee, a former employee or an applicant for a job. You will also be protected if you are a worker, partner or office-holder.

Equal pay

Sex discrimination laws do not protect against discrimination which relates to money or pay. The Equal Pay Act (Northern Ireland) 1970 make it unlawful for employers to discriminate between men and women in relation to their pay and other terms of remuneration in their contract of employment, where they are doing the same or similar work. The Act implies certain terms into a woman's employment contract, to ensure that the woman will have the same pay, benefits and favourable terms as a man who is doing similar work that is of the same value.

Areas of sex discrimination in employment

Sex discrimination in the workplace is unlawful in all aspects of employment, including the recruitment process, status, training, promotion and transfer opportunities, redundancy, dismissal and even post-employment.

In some cases, however, a job can be offered to someone of a particular sex without it amounting to unlawful discrimination, if there is a 'genuine occupational qualification' for the role. Examples could include:

  • Some jobs in single-sex schools
  • Jobs in some welfare services
  • Acting jobs that need a man or a woman
  • Where the job needs to be held by a particular gender to preserve a level of decency or privacy, such as where the job will involve some physical contact and people might object to the opposite sex.
  • Where the job might require the employee to live in accommodation provided for by the employer and the only accommodation available is for people of a particular gender.
  • Where the job is to be performed in a country where women are not allowed to perform those duties.
Types of sex discrimination

Direct sex discrimination

This is where your employer treats you less favourably because of your sex when compared with another worker of the opposite sex who shares the same or similar (but not materially different) circumstances as you (known as a 'comparator').

The comparator's circumstances do not need to be identical to yours (in terms of the type of job, job level, job experience and seniority, etc.) but must not be wholly dissimilar. If you cannot find a suitable comparator then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as you (such as your title, role, level, etc.). An Industrial Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

It is important to note that direct sex discrimination will only be regarded as unlawful if it is on the grounds of your own (the complainant's) sex. Direct sex discrimination on the grounds of your perceived sex, or your association with people of a particular sex, will not be regarded as unlawful. Direct sex discrimination includes the grounds of discrimination mentioned above. For example:

  • If a single person, who has the same experience and qualifications as yourself, is promoted instead of you, simply because he/she is single while you are married or in a civil partnership
  • If you are sacked because you told your employer that you are pregnant or might start a family
In a claim of discrimination on the basis of pregnancy, or, because you exercised or intended to exercise statutory maternity leave rights, you don't need to compare yourself with another employee. If you are treated less favourably than before and you can establish that this is because you are pregnant, or because you have exercised your statutory maternity leave rights (or plan to), this will be sex discrimination.

Your employer could be liable for a direct sex discrimination claim even if there was no intention to discriminate against you. Your employer can't defend a direct sex discrimination claim by 'justifying' it (arguing that their actions were a proportionate means of achieving a legitimate aim). The only defence would be to prove that there was no sex discrimination.

Indirect sex discrimination

You will be subjected to this where certain working practices, provisions or criteria which apply to all employees, places some employees at a particular disadvantage because of their sex/gender, marital/civil partnership status, gender reassignment or pregnancy (as set out above) and you also suffer that particular disadvantage. For example, an employer setting a minimum height for a particular position, which puts most women at a disadvantage, would be indirect sexual discrimination if you are a woman and would have been eligible to apply for that position, had it not been for that provision.

Indirect sex discrimination would not be unlawful if your employer can justify it by showing that the working practices, provisions or criteria which are being applied is a proportionate means to achieve a legitimate aim.

Your employer could be held liable for indirect sex discrimination even if they did not intend to discriminate against you.

Harassment

The Sexual Discrimination Order (Northern Ireland) 1976 makes unlawful any unwanted conduct of a sexual nature (sexual harassment), and unwanted conduct that is not of a sexual nature but is related to the complainant's sex or the sex of another person. It could be a case of unlawful harassment if you are subjected to unwanted behaviour that is of a sexual nature or is related to your actual or perceived sex (whether or not the perception is correct) or the sex of another person, and that has violated your dignity or created a hostile, degrading, intimidating, humiliating or offensive environment.

Unlawful sex harassment will also occur if an employer treats a worker less favourably because they have rejected or submitted to any unwanted conduct.

Furthermore, the unwanted conduct will be harassment even where it was not intended to be harassing. If it is reasonable to regard the unwanted conduct as having a harassing effect, it may be unlawful.

For example, making sexual remarks or gestures, allowing displays or distribution of sexually explicit material, or referring to people of a particular sex by a potentially offensive nickname, could all result in unlawful harassment.

It should be noted that sex harassment only relates to sex/gender and gender reassignment and not to marital status, civil partnership status or pregnancy.

An employer also has a duty to protect a worker from any sex harassment by a third party, such as from a client or customer, which they may be subjected to in the course of their employment. The employer must take reasonably practicable steps to prevent such harassment, but will not be liable for the conduct of third parties which is beyond their control. The employer can only be held liable if the worker has been subjected to such harassment on at least two other occasions. It need not be the same person causing the harassment on each occasion.

Employers will be liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done to you whilst at work' or 'done to you during work time'. Employers can't defend a claim of harassment by showing that they did not authorise it.

Note that you will not be protected by the regulations if you are over sensitive and unreasonably take offence to an innocent comment.

An employer can escape liability for harassment if it took reasonable practicable steps to prevent it.

Victimisation

Victimisation in terms of the Sexual Discrimination Order (Northern Ireland) happens when you are being treated less favourably than another employee because:

  • You have asserted your rights not to be discriminated against on the basis of your sex by making a complaint about sex discrimination
  • You have given evidence in a complaint of sex discrimination
  • You did anything else under the sex discrimination order
  • You alleged that someone has contravened the sex discrimination order
  • Your employer knows that you intended to do or suspects that you have done or intend to do any of these things
For example, if, because you have taken one of the above actions, you are prevented from going on training courses, or unfair disciplinary action is taken against you, or you are excluded from company social events, you might be subjected to victimisation.

Positive action

In some circumstances, an employer may encourage or offer support specifically to men or women. This is called 'positive action' and is, in certain circumstances, allowed under sex discrimination laws.

For example, an employer who has no female managers might offer some training in management skills only to women or encourage them to apply for management posts. Positive action applies only to training and encouragement to apply for posts, so when it comes to choosing who is to get a post the employer must consider all candidates on their suitability alone.

What to do next

If you think that you're suffering sex discrimination at work, you should talk to your employer and explain why you feel discriminated against. If necessary, put your complaint in writing. An employee representative (such as a trade union official) may be able to help you. Your employer may have an equal opportunities policy - ask to see it.

If this doesn't help, you should make a complaint using your employer's grievance procedure. If your employer doesn't have a grievance procedure, you should set out your complaint in a letter and hand it to your line manager. If your line manager is the problem, then hand your letter to your HR manager or the person your line manager reports to. Your employer should then arrange a grievance meeting with you. If the outcome of the meeting is unsatisfactory, you have the right to appeal to a manager who was not previously involved in your grievance. For more information, see our article on grievance procedures in Northern Ireland.

If you're still unhappy, you can, in certain cases, apply to an Industrial Tribunal. Before you do this you must obtain legal advice. You need to apply within three months of the act of discrimination taking place.

If the discrimination extends over a period, you must bring your claim to the Industrial Tribunal within 3 months from the end of that period. It is advisable to obtain legal advice if you wish to proceed with a claim to an Industrial Tribunal.

In the case of an equal pay claim you can take your claim to the Industrial Tribunal at any time during the time that you remain in the employment to which your equal pay claim relates. If, however, you leave the employment to which your equal pay claim relates, then you have six months within which to bring your claim, calculated from the last day that you were employed.

Further information

You can get more information from the Labour Relations Agency (LRA) which offers free, confidential and impartial advice on all employment rights issues. You can call the LRA helpline on 028 9032 1442 from 09:00 to 17:00, Monday to Friday.