The Equality Act 2010 implements the principle that men and women should have equal treatment regarding access to employment, promotions and working conditions. If an employee discriminates against or harasses another employee, then the employer will be liable unless they take reasonable steps to prevent that conduct taking place.
Types of discrimination
This is where someone is treated less favourably than others because of their sex. It does not matter whether the person being discriminatory had the protected characteristic. The person being treated less favourably would need to use a real or hypothetical comparator to show the less favourable treatment. Not every difference in treatment will necessarily be less favourable, but there is no need for someone to show that they are less well-off as a result of an employer’s action. They would only need to show that they could reasonably say that he/she would have preferred not to have been treated differently.
This is where the employer applies a provision, criterion or practice that will disadvantage someone of a particular sex without justification. There does not have to be a formal policy in place in order for it to be challenged. However, if the employer can show that the provision, criterion or practice is objectively justified and is a proportionate means of achieving a legitimate aim, the claim for indirect discrimination will fail.
This is where someone is treated less favourably because they reject or submit to harassment related to sex or sexual harassment. An employer will not be liable if they took all reasonable steps to prevent the harassment.
This is where someone is treated differently because they have made or intend to make a sex discrimination complaint or have taken or intend to take action in connection with the Equality Act 2010. There is no protection if a person makes allegations or gives evidence which they know is false. However, a person who complains mistakenly but in good faith is protected.
Can sex discrimination be lawful?
For direct or indirect sex discrimination, occupational requirement is a lawful exception. For example, the employment may be for the purpose of an organised religion and to comply with the doctrines of the religion, the employer applies an occupational requirement to be a particular sex.
An employer may reasonably think that a person with a particular protected characteristic is disadvantaged or are under-represented. Therefore, they can take proportionate measures to enable or encourage people with that characteristic to overcome the disadvantage or enable or encourage their participation.
Other exceptions can include safeguarding national security, providing benefits to the public, insurance contracts and communal accommodation.