Harassment
There are special provisions in the SDA prohibiting harassment in employment. Harassment is defined as either:
- unwanted conduct on the grounds of the recipient's sex or;
- unwanted verbal, non-verbal or physical conduct of a sexual nature
In either case the conduct must have the purpose, or the effect of violating the recipient's dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the recipient.
It is also harassment to treat somebody less favourably because they have rejected or submitted to either type of harassment described above.
Harassment on the grounds that someone intends to undergo, is undergoing or has undergone gender reassignment is also expressly prohibited by the SDA.
There are no express provisions prohibiting harassment in other fields covered by the SDA but the recipient could take a claim of direct sex discrimination based on the fact that that the harasser would not have treated somebody of the opposite sex in this way.
Discrimination on grounds of sexual orientation
The SDA has been held by the courts not to prohibit discrimination on the grounds of sexual orientation. Discrimination on the grounds of sexual orientation in the employment field is unlawful under the Employment Equality (Sexual Orientation) Regulations 2003.
Discrimination in the employment field
In general, it is unlawful for an employer to discriminate directly or indirectly on grounds of sex or marriage in:
- Recruitment (although sex discrimination will be lawful if one of the defined genuine occupational requirements applies e.g. the job needs to be held by a man to preserve privacy and decency, or a role in a performance needs to be held by a woman for reasons of authenticity).
- Treatment at work (but note that claims relating to discrimination in contractual pay and benefits are brought under the Equal Pay Act).
- Dismissal.
Discrimination on the grounds of gender reassignment, discrimination on the grounds of pregnancy and maternity and harassment are also expressly prohibited in the employment field
Discrimination against ex-employees is also covered by the SDA where the discrimination complained of is related to the previous employment.
Employees (and potential employees) have rights under the SDA whatever their length of employment and whatever hours they work.
The SDA applies even if some of the work is to be done outside Great Britain. Even if the employee works wholly outside of Great Britain, they are still covered by the SDA if their employer has a place of business at an establishment in Great Britain and the work is for the purposes of the business carried out at that establishment; and the employee is ordinarily resident in Great Britain at the time when he applies for is offered the employment, or at any time during the course of the employment.
The SDA also protects people who are not "employees" in the sense required for some other employment rights, such as the right not to be unfairly dismissed. It protects people engaged under a contract personally to execute work or labour. Contract workers whose labour is supplied by their employer to another person (the principal) are protected against discrimination by the principal. Office holders are now also protected under the SDA. There are special provisions prohibiting discrimination
- by firms against partners or potential partners
- by trade unions and employers' organisations against members or potential members
- by authorities or bodies in conferring authorisations or qualifications needed for or facilitating engagement in a particular profession or trade
- by people providing vocational training including all forms of unpaid practical work experience and vocational guidance.
- by employment agencies
- by or in relation to barristers or advocates.
Part II of the SDA contains the provisions relating to discrimination in the employment field, except for the provisions about barristers, which are in Part III.
Discrimination in education
Co-educational schools, colleges and universities must not discriminate directly or indirectly on grounds of sex in the way they treat or admit students. Single sex schools may restrict their intake to boys or girls (with very limited exceptional admissions of pupils of the opposite sex). Single sex schools which intend to change to co-educational admission, can get approval for a limited exemption from the SDA during the transitional phase.
Local education authorities must not discriminate in carrying out their functions under the Education Acts.
Part III of the SDA contains the provisions relating to discrimination in education.
Discrimination in the provision of goods, facilities and services and premises
With a few exceptions, it is unlawful to discriminate directly or indirectly on grounds of sex in the provision of goods, facilities or services to the public, or a section of the public or in the disposal or management of premises. The main exceptions include:
- Discrimination by non-profit making voluntary bodies in restricting their membership to one sex or providing benefits to one sex only in accordance with their main object.
- Discrimination in the provision of facilities or services to avoid serious embarrassment to users which would be caused by the presence of members of the opposite sex.
Part III contains the provisions relating to discrimination in the provision of goods, facilities and services and premises.
Is positive discrimination lawful?
In general, positive discrimination to favour one sex is not lawful. There are limited exceptions allowing discrimination in training, or encouragement to apply for particular work in which members of the relevant sex are under-represented. These lawful exceptions are often referred to as positive action.
The positive action provisions are contained in Part V of the SDA.
How can an individual enforce their rights under the SDA?
Employment related claims are brought in the employment tribunal. Other claims are brought in a county court in England and Wales or in a sheriff court in Scotland. Strict time limits apply: 3 months (less one day) from the act of discrimination for employment tribunal claims and 6 months (less one day) for other claims. Special provisions apply to claims about discrimination in the state education sector.
What remedies are there for unlawful discrimination?
Possible remedies include:
- A declaration that unlawful discrimination has occurred.
- Compensation for financial loss, injury to feelings and injury to health with interest.
- In employment tribunals, a recommendation that the employer take action which will reduce the effect of discrimination on the complainant.
In a county court in England and Wales, or sheriff court in Scotland, an order that the discriminator stop the discrimination.
This is a brief summary of your rights under the Sex Discrimination Act and Equal Pay Act. For more detailed information, visit the Know your rights section of this website.
The Sex Discrimination Act (SDA) came into force in 1975. The Equal Pay Act (EPA) took effect in 1975. Each act has been amended a number of time since they came into force, the latest amendments to both being in 2003).
What do the acts say?
The SDA makes it unlawful to discriminate on the grounds of sex. Specifically, sex discrimination is not allowed in employment, education, advertising or when providing housing, goods, services or facilities. It is unlawful to discriminate because someone is married, in employment or advertisements for jobs. It is also unlawful to discriminate in the employment field on the grounds of gender reassignment, or pregnancy and maternity. Harassment in employment is also specifically prohibited. The EPA says women must be paid the same as men when they are doing equal work and vice-versa.
What is the EOC?
The Equal Opportunities Commission was created by Parliament in 1976. We have three main tasks:
- working to end sex discrimination
- promoting equal opportunities for women and men
- reviewing and suggesting improvements to the Sex Discrimination Act and the Equal Pay Act. The EOC does not deal with discrimination on the basis of race, age, disability or other grounds.
What are my rights?
Employment
Employers must not discriminate against you because of your sex or because you are married, because you have undergone (or intend to undergo) gender reassignment or because of your pregnancy or maternity leave. Harassment at work is also unlawful.
This applies to recruitment, your treatment in your job, chances for promotion and training, dismissal or redundancy. Employers must not label jobs 'for men' or 'for women' except in some very special circumstances: a person's sex can be considered a 'genuine occupational qualification' in jobs such as acting or where the work is mainly or wholly abroad.
Equal Pay
Employers must not discriminate against you on the basis of sex, in relation to your pay. For example, if you and another colleague of the opposite sex are doing the same job but you are paid less then you have a right to equal pay – unless the employer can show there is a genuine reason for the pay difference which is not based on sex.
Education
Co-educational schools, colleges and universities must not discriminate in the way they provide facilities or in the way they admit students. For example, all students should have equal access to the National Curriculum. The careers service must not discriminate between boys and girls in the way they provide advice and assistance. Single-sex schools may restrict admission to boys or girls, but they must not restrict the types of subjects they teach as a result.
Housing, goods, facilities, and services
With a few exceptions, no one providing housing, goods, facilities or services to the public may discriminate against you because of your sex. For example, you must not be discriminated against when:
- applying for a mortgage or loan
- taking part in recreational activities
- buying or renting accommodation
Advertising
Advertisements must not show that the advertiser intends to discriminate unlawfully. The Equal Opportunities Commission can take legal action against advertisers who discriminate.
Victimisation
You are protected by the law in case you are victimized for trying to exercise your rights under the Sex Discrimination or Equal Pay Acts.
What should I do first?
To help you decide whether to start a case, visit the Know your rights section of this website for information on the different types of sex discrimination.
Where do I take my complaint?
If you feel that you have been treated unfairly because of your sex, marriage or gender reassignment you can take your complaint to a county court, in England or Wales, or to sheriff court in Scotland. If your complaint is about employment or equal pay you go to an employment tribunal. If your complaint is about education in a state school, college or university you must first give the Secretary of State a chance to exercise the Secretary's powers under the Education Acts.
How soon must I take action?
You must present your complaint of sex, marriage or gender reassignment discrimination to a tribunal not later than three months (minus one day) after the act you are complaining about took place. for further information visit the Know your rights section of this website.
You may be able to take a complaint after this time if you can show a good reason that you could not make your complaint earlier.
Complaints about unequal pay can be presented to an employment tribunal at any time while in the job to which your claim relates and up to six months (minus one day) after leaving the job. If you are taking a case to a county or sheriff court you must begin your legal action not later than six months (minus one day) after the act you are complaining about took place.
