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The Equal Opportunities Commission (the EOC) was
set up under the Sex Discrimination Act 1975 (as amended) and is
empowered to issue Codes of Practice under section 58(A)(1) of that
Act. A failure on the part of any person to observe any provision
of a code of practice shall not of itself render him [or her]
liable to any proceedings; but in any proceedings under this Act
before an employment tribunal any code of practice issued under
this section shall be admissible in evidence, and if any provision
of such a code appears to the tribunal to be relevant to any
question arising in the proceedings it shall be taken into account
in determining that question. [Sex Discrimination Act 1975 (as
amended), section 56A(10)]
INTRODUCTION
The EOC issues this Code of Practice for the following
purposes:
- for the elimination of discrimination in employment;
- to give guidance as to what steps it is reasonably practicable
for employers to take to ensure that their employees do not in the
course of their employment act unlawfully contrary to the Sex
Discrimination Act (SDA);
- for the promotion of equality of opportunity between men and
women in employment.
The SDA prohibits discrimination against men, as well as
against women. It also requires that married people should not be
treated less favourably than single people of the same sex. It
should be noted that the provisions of the SDA - and therefore this
Code - apply to the UK-based subsidiaries of foreign
companies.
PURPOSE OF THE CODE
The Code gives guidance to employers, trade unions and
employment agencies on measures that can he taken to achieve
equality. The chances of success of any organisation will clearly
be improved if it seeks to develop the abilities of all employees,
and the Code shows the close link that exists between equal
opportunity and good employment practice.
In some cases, an initial cost may be involved, but this should be
more than compensated for by better relationships and better use of
human resources.
SMALL BUSINESSES
The Code has to deal in general terms and it will be necessary
for employers to adapt it in a way appropriate to the size and
structure of their organisations. Small businesses, for example,
will require much simpler procedures than organisations with
complex structures and it may not always be reasonable for them to
carry out all the Code's detailed recommendations. In adapting the
Code's recommendations, small firms should, however, ensure that
their practices comply with the Sex Discrimination Act.
EMPLOYERS' RESPONSIBILITY
The primary responsibility at law rests with each employer to
ensure that there is no unlawful discrimination. It is important,
however, that measures to eliminate discrimination or promote
equality of opportunity should be understood and supported by all
employees. Employers ate therefore recommended to involve their
employees in equal opportunity policies.
INDIVIDUAL EMPLOYEES' RESPONSIBILITY
While the main responsibility for eliminating discrimination
and providing equal opportunity is that of the employer, individual
employees at all levels have responsibilities too. They must not
discriminate or knowingly aid their employer to do so.
TRADE UNION RESPONSIBILITY
The full commitment of trade unions is essential for the
elimination of discrimination and for the successful operation of
an equal opportunities policy. Much can be achieved by collective
bargaining and throughout the Code it is assumed that all the
normal procedures will be followed.
It is recommended that unions should co-operate in the
introduction and implementation of equal opportunities policies
where employers have decided to introduce them, and should urge
that such policies be adopted where they have not yet been
introduced.
Trade Unions have a responsibility to ensure that their
representatives and members do not unlawfully discriminate on
grounds of sex or marriage in the admission or treatment of
members. The guidance in this Code also applies to trade unions in
their role as employers.
EMPLOYMENT AGENCIES
Employment agencies have a responsibility as suppliers of job
applicants to avoid unlawful discrimination on the grounds of sex
or marriage in providing services to clients. The guidance in this
Code also applies to employment agencies in their role as
employers.
DEFINITIONS
For case of reference, the main employment provisions of the
Sex Discrimination Act, including definitions of direct and
indirect sex and marriage discrimination, are provided in a Legal
Annex to this Code. (See pages 12-18).
THE ROLE OF GOOD EMPLOYMENT PRACTICES IN ELIMINATING SEX AND
MARRIAGE DISCRIMINATION
This section of the Code describes those good employment
practices, which will help to eliminate unlawful discrimination. It
recommends the establishment and use of consistent criteria for
selection, training, promotion, redundancy and dismissal that are
made known to all employees. Without this consistency, decisions
can be subjective and leave the way open for unlawful
discrimination to occur.
RECRUITMENT
It is unlawful: unless the job is
covered by an exception: to discriminate directly or indirectly on
the grounds of sex or marriage - in the arrangements made for
deciding who should be offered a job - in any terms of employment -
by refusing or omitting to offer a person employment.
It is therefore recommended
that:
- each individual should be assessed according to his or her
personal capability to carry out a given job. It should not be
assumed that men only or women only will be able to perform certain
kinds of work;
- any qualifications or requirements applied to a job which
effectively inhibit applications from one sex or from married
people should be retained only if they are justifiable in terms of
the job to be done;
- any age limits should be retained only if they are necessary
for the job. An unjustifiable age limit could constitute unlawful
indirect discrimination, for example, against women who have taken
time out of employment for child-rearing;
- where trade unions uphold such qualifications or requirements
as union policy, they should amend that policy in the light of any
potentially unlawful effect.
GENUINE OCCUPATIONAL QUALIFICATIONS (GOQs)
It is unlawful: except for certain
jobs when a person's sex is a genuine occupational qualification
(GOQ) for that job to select candidates on the ground of sex.
There are very few instances in which a job will qualify for a
GOQ on the ground of sex. However, exceptions may arise *, for
example, where considerations of privacy and decency or
authenticity are involved. The SDA expressly states that the need
of the job for strength and stamina does not justify restricting it
to men. When a GOQ exists for a job, it applies also to promotion,
transfer, on training for that job, but cannot be used to justify a
dismissal.
In some instances, the GOQ will
apply to some of the duties only. A GOQ will not be valid, however,
where members of the appropriate sex are already employed in
sufficient numbers to meet the employer's likely requirements
without undue inconvenience. For example, in a job where sales
assistants may be required to undertake changing room duties, it
might not be lawful to claim a GOQ in respect of
all the assistants on the grounds that
any of them might be required to undertake changing room duties
from time to time.
It is therefore recommended that: -
A job for which a GOQ was used in the past should be re- examined
if the post falls vacant to see whether the GOQ still applies.
Circumstances may well have changed, rendering the GOQ
inapplicable.
SOURCES OF RECRUITMENT
It is unlawful: unless the job is
covered by an exception: - to discriminate on grounds of sex or
marriage in the arrangements made for determining who should be
offered employment whether recruiting by advertisements, through
employment agencies, job centres, or career offices to imply that
applications from one sex or from married people will not be
considered to instruct or put pressure on others to omit to refer
for employment people of one sex or married people unless the job
is covered by an exception.
It is also unlawful when advertising
job vacancies, - to publish or cause to be published an
advertisement that indicates or might reasonably be understood as
indicating an intention to discriminate unlawfully on grounds of
sex or marriage.
Advertising
It is therefore recommended that job
advertising should be carried out in such a way as to encourage
applications from suitable candidates of both sexes. This can be
achieved both by wording of the advertisements and, for example by
placing advertisements in publications likely to reach both sexes.
All advertising material and accompanying literature relating to
employment or training issues should be reviewed to ensure that it
avoids presenting men and women in stereotyped roles. Such
stereotyping tends to perpetuate sex segregation in jobs and can
also lead people of the opposite sex to believe that they would be
unsuccessful in applying for particular jobs:
- where vacancies are filled by promotion or transfer, they
should be published to all eligible employees in such a way that
they do not restrict applications from either sex
- recruitment solely or primarily by word of mouth may
unnecessarily restrict the choice of applicants available. The
method should be avoided in a workforce predominantly of one sex,
if in practice it prevents members of the opposite sex from
applying
- where applicants are supplied through trade unions and members
of one sex only come forward, this should be discussed with the
unions and an alternative approach adopted.
Careers Service/Schools
When notifying vacancies to the Careers Service, employers
should specify that these are open to both boys and girls. This is
especially important when a job has traditionally been done
exclusively or mainly by one sex. If dealing with single sex
schools, they should ensure, where possible, that both boys' and
girls' schools are approached: it is also a good idea to remind
mixed schools that jobs are open to boys and girls.
SELECTION METHODS
Tests
If selection tests are used, they should be specifically
related to job and/or career requirements and should measure an
individual's actual or inherent ability to do or train for the work
or career.
Tests should be reviewed regularly to ensure that they remain
relevant and free from any unjustifiable bias, either in content or
in scoring mechanism
Applications and Interviewing
It is unlawful: unless the job is
covered by an exception: to discriminate on grounds of sex or
marriage by refusing or deliberately omitting to offer
employment.
It is therefore recommended
that:
- employers should ensure that personnel staff, line managers and
all other employees who may come into contact with job applicants,
should be trained in the provisions of the SDA, including the fact
that it is unlawful to instruct or put pressure on others to
discriminate;
- applications from men and women should he processed in exactly
the same way. For example, there should not be separate lists of
male and female or married and single applicants. All those
handling applications and conducting interviews should be trained
in the avoidance of unlawful discrimination and records of
interviews kept, where practicable, showing why applicants were or
were not appointed;
- questions should relate to the requirements of the job. Where
it is necessary to assess whether personal circumstances will
affect performance of the job (for example, where it involves
unsocial hours or extensive travel) this should be discussed
objectively without detailed questions based on assumptions about
marital status, children and domestic obligations. Questions about
marriage plans or family intentions should not be asked, as they
could be construed as showing bias against women. Information
necessary for personnel records can be collected after a job offer
has been made.
PROMOTION, TRANSFER AND TRAINING
It is unlawful: unless the job is
covered by an exception, for employers to discriminate directly or
indirectly on the grounds of sex or marriage in the way they afford
access to opportunities for promotion, transfer or training.
It is therefore recommended
that:
- where an appraisal system is in operation, the assessment
criteria should be examined to ensure that they are not unlawfully
discriminatory and the scheme monitored to assess how it is working
in practice;
- when a group of workers predominantly of one sex is excluded
from an appraisal scheme, access to promotion, transfer and
training and to other benefits should be reviewed, to ensure that
there is no unlawful indirect discrimination;
- promotion and career development patterns are reviewed to
ensure that the traditional qualifications are justifiable
requirements for the job to be done. In some circumstances, for
example, promotion on the basis of length of service could amount
to unlawful indirect discrimination, as it may unjustifiably affect
more women than men;
- when general ability and personal qualifies are the main
requirements for promotion to a post, care should be taken to
consider favourably candidates of both sexes with differing career
patterns and general experience;
- rules which restrict or preclude transfer between certain jobs
should be questioned and charged if they are found to unlawfully
discriminatory. Employees of one sex may be concentrated in
sections from which transfers are traditionally restricted without
real justification;
- policies and practices regarding selection for training, day
release and personal development should be examined for unlawful
direct and indirect discrimination. Where there is found to be an
imbalance in training as between sexes, the cause should be
identified to ensure that it is not discriminatory;
- age limits for access to training and promotion should be
questioned.
HEALTH AND SAFETY LEGISLATION
Equal treatment of men and women may be limited by statutory
provisions, which require men and women to be treated differently.
For example, the Factories Act 1961 places restrictions on the
hours of work of female manual employees, although the Health and
Safety Executive can exempt employers from these restrictions,
subject to certain conditions. The Mines and Quarries Act 1954
imposes limitations on women's work and there are restrictions
where there is special concern for the unborn child (e.g. lead and
ionising radiation). However the broad duties placed on employers
by the Health and Safety at Work Act, 1974 makes no distinctions
between men and women Section 2(1) requires employers to ensure, so
far as is reasonably practicable, the health and safety and welfare
at work of all employees.
Specific health and safety requirements under earlier
legislation are unaffected by the act.
It is therefore recommended that:
company policy should be reviewed and serious consideration given
to any significant differences in treatment between men and women,
and there should be well-founded reasons if such differences are
maintained or introduced.
Note. Some statutory restrictions placed on adult
women's hours of work were repealed in February 1987 and others in
February 1988. They now no longer apply. Paragraph 26 of the code
is still relevant, however, to other health and safety legislation
that requires men and women to be treated differently, and which
has not been repealed.
TERMS OF EMPLOYMENT, BENEFITS, FACILITIES AND SERVICES
It is unlawful: unless the job is
covered by an exception: to discriminate on the grounds of sex or
marriage, directly or indirectly, in the terms on which employment
is offered or in affording access to any benefits, facilities or
services.
It is therefore recommended that:
all terms of employment, benefits, facilities and services are
reviewed to ensure that there is no unlawful discrimination on
grounds of sex or marriage. For example, part-time work, domestic
leave, company cars and benefits for dependants should be available
to both male and female employees in the same or not materially
different circumstances.
In an establishment where part- timers are solely or mainly
women, unlawful indirect discrimination may arise if, as a group,
they are treated less favourably than other employees without
justification.
It is therefore recommended that:
where part-time workers do not enjoy pro-rata pay or benefits with
full-time workers, the arrangements should be reviewed to ensure
that they are justified without regard
to sex.
GRIEVANCES, DISCIPLINARY PROCEDURES AND VICTIMISATION
It is unlawful: to victimise an
individual for a complaint made in good faith about sex or marriage
discrimination or for giving evidence about such a complaint.
It is therefore recommended
that:
- particular care is taken to ensure that an employee who has in
good faith taken action under the Sex Discrimination Act or the
Equal Pay Act does not receive less favourable treatment than other
employees, for example by being disciplined or dismissed
- employees should be advised to use the internal procedures,
where appropriate, but this is without prejudice to the
individual's right to apply to an employment tribunal within the
statutory time limit, i.e. before the end of the period of three
months beginning when the act complained of was done, (There is no
time limit if the victimisation is continuing.)
- particular care is taken to deal effectively with all
complaints of discrimination, victimisation or harassment. It
should not be assumed that they are made by those who are
over-sensitive.
DISMISSALS, REDUNDANCIES AND OTHER UNFAVOURABLE TREATMENT OF
EMPLOYEES
It is unlawful: to discriminate
directly or indirectly on grounds of sex or marriage in dismissals
or by treating an employee unfavorably in any other way.
It is therefore recommended
that:
- care is taken that members of one sex are not disciplined or
dismissed for performance or behaviour which would be overlooked or
condoned in the other sex;
- redundancy procedures affecting a group of employees
predominantly of one sex should be reviewed, so as to remove any
effects which could be disproportionate and unjustifiable;
- conditions of access to voluntary redundancy benefit should be
made available on equal terms to male and female employees in the
same or not materially different circumstances;
- where there is down- grading or short- time working (for
example, owing to a change in the nature or volume of an employer's
business) the arrangements should not unlawfully discriminate on
the ground of sex;
- all reasonably practical steps should be taken to ensure that a
standard of conduct or behaviour is observed which prevents members
of either sex from being intimidated, harassed or otherwise
subjected to unfavourable treatment on the ground of their
sex.
THE ROLE OF GOOD EMPLOYMENT PRACTICES IN PROMOTING EQUALITY OF
OPPORTUNITY
This section of the Code describes those employment practices
that help to promote equality of opportunity. It gives information
about the formulation and implementation of equal opportunities
policies. While such policies are not required by law, their value
has been recognised by a number of employers who have voluntarily
adopted them. Others may wish to follow this example.
FORMULATING AN EQUAL OPPORTUNITIES POLICY
An equal opportunities policy will ensure the effective use of
human resources in the best interests of both the organisation and
its employees, It is a commitment by an employer to the development
and use of employment procedures and practices which do not
discriminate on grounds of sex or marriage and which provide
genuine equality of opportunity for all employees. The detail of
the policy will vary according to size of the organisation.
IMPLEMENTING THE POLICY
An equal opportunities policy must be seen to have the active
support of management at the highest level. To ensure that the
policy is fully effective, the following procedure is
recommended:
- the policy should be clearly stated and where appropriate,
included in a collective agreement;
- overall responsibility for implementing the policy should rest
with senior management;
- the policy should be made known to all employees and, where
reasonably practicable, to all job applicants.
Trade unions have a very important part to play in
implementing genuine equality of opportunity and they will
obviously be involved in the review of established procedures to
ensure that these are consistent with the law.
MONITORING
It is recommended that the policy be
monitored regularly to ensure that it is working in practice.
Consideration could he given to setting up a joint Management/
Trade Union Review Committee.
In a small firm with a simple structure it may be quite
adequate to assess the distribution and payment of employees from
personal knowledge.
In a large and complex organisation a more formal analysis
will be necessary, for example, by sex, grade and payment in each
unit. This may need to be introduced by stages as resources permit.
Any formal analysis should be regularly updated and available to
Management and Trade Unions to enable any necessary action to be
taken.
Sensible monitoring will show, for example, whether members of
one sex:
- do not apply for employment or promotion, or that fewer apply
than might be expected;
- are not recruited, promoted or selected for training and
development or are appointed/selected in a significantly lower
proportion than their rate of application;
- are concentrated in certain jobs, sections or departments.
POSITIVE ACTION
Recruitment, Training and Promotion
Selection for recruitment or promotion must be on merit,
irrespective of sex. However, the Sex Discrimination Act does allow
certain steps to redress the effects of previous unequal
opportunities. Where there have been few or no members of one sex
in particular work in their employment for the previous 12 months,
the Act allows employers to give special encouragement to, and
provide specific training for, the minority sex. Such measures are
usually described as Positive Action.
Employers may wish to consider positive measures such
as:
- training their own employees (male or female) for work which is
traditionally the preserve of the other sex, for example, training
women for skilled manual or technical work
- positive encouragement to women to apply for management posts -
special courses may be needed.
- advertisements which encourage applications from the minority
sex, but make it clear that selection will be on merit without
reference to sex
- notifying job agencies, as part of a Positive Action Programme
that they wish to encourage members of one sex to apply for
vacancies, where few or no members of that sex are doing the work
in question. In these circumstances, job agencies should tell both
men and women about the posts and, in addition, let the
under-represented sex know that applications from them are
particularly welcome. Withholding information from one sex in an
attempt to encourage applications from the opposite sex would be
unlawful.
Other Working Arrangements
43. There are other forms of action that could assist both
employer and employee by helping to provide continuity of
employment to working parents, many of whom will have valuable
experience or skills.
Employers may wish to consider with their employees whether:
(a) certain jobs can be carried out on a part- time or flexi-
time basis
(b) personal leave arrangements are adequate and available to
both sexes. It should not be assumed that men may not need to
undertake domestic responsibilities on occasion, especially at the
time of childbirth
(c) child- care facilities are available locally or whether it
would be feasible to establish nursery facilities on the premises
or combine with other employers to provide them
(d) residential training could be facilitated for employees
with young children. For example, where this type of training is
necessary, by informing staff who are selected well in advance to
enable them to make childcare and other personal arrangements;
employers with their own residential training centres could also
consider whether childcare facilities might he provided
(e) the statutory maternity leave provisions could he
enhanced, for example, by reducing the qualifying service period,
extending the leave period, or giving access to part- time
arrangements on return.
These arrangements, and others, are helpful to both sexes but
are of particular benefit to women in helping them to remain in
gainful employment during the years of child- rearing.*
ANNEX: LEGAL BACKGROUND
This section gives general guidance only and should not be
regardes a complete or definitive statement of law.
THE RELATIONSHIP BETWEEN THE EQUAL PAY ACT AND THE SEX
DISCRIMINATION ACT
The Sex Discrimination Act 1975 (as amended) (the SDA) covers
a wide range of non-contractual benefits, in addition to covering
practices and procedures relating to recruitment, training,
promotion and dismissal. A claim relating to a contractual benefit
may also be brought under the SDA provided the benefit does not
consist of the payment of money.
The Equal Pay Act 1970 (as amended) (the EPA) provides for an
individual to be treated not less favourably than a person of the
opposite sex who works for the same employer, as regards pay and
other terms of the contract of employment where they are employed
on like work (i. e. the same work or work which is broadly similar)
or on work which has been rated as equivalent under a job
evaluation scheme or on work which is of equal value. There is no
overlap between an individual's rights under the Equal Pay Act and
those under the Sex Discrimination Act. All complaints of
discrimination in the circumstances covered by the EPA are dealt
with under that Act. All complaints of discrimination about access
to jobs and matters not included in a contract of employment and
about contractual matters (other than those relating to the payment
of money) in situations not covered by the EPA are dealt with under
the SDA.
WHO IS COVERED BY THE SDA?
The provisions of the SDA apply to both men and women. It is
unlawful to discriminate, directly or indirectly, against a person
on the grounds of sex or marriage, unless the situation is covered
by one of the Exceptions. It is also unlawful to instruct or bring
pressure to bear on others to discriminate.
EXCEPTIONS FROM THE ACT
Geographical Scope Section 10(1)
The SDA does not relate to employment that is wholly or mainly
outside Great Britain.
Private Household or Small Employer - Section 6(3)(a);
Section 6(3)(b)
These exceptions made it lawful under the Sex Discrimination
Act to discriminate in relation to existing or potential employment
in a private household, or an organisation that employed five
people or fewer. These exceptions did not apply to matters covered
by the Equal Pay Act. These exceptions were, however, repealed in
Febuary 1987.
Small Employer
Note: Small employers, as all other employers, are
now covered by the SDA. This means that there is now no distinction
between small employers and any other employer. There are, however,
still certain exclusions which apply to all employers relating to,
for example (i) death or retirement, and (ii) Genuine Occupational
Qualifications, in accordance with sections 6(4) and 7 of the SDA.
Paragraph 3 of the Code, which states that it will be necessary for
employers to adapt the Code in a way appropriate to the size and
structure of their organisations, has not been superseded.
Private Household
Note: There is no longer any distinction between
employment in a private household and any other employment for the
purposes of the SDA. There can no longer be any sex or marriage
discrimination in choosing someone to work in your home except
that, in order to respect personal privacy, discrimination on the
basis of a person's sex may still be allowed if the job involves
physical or social contact with someone in the family, or having
knowledge of intimate details of someone's life.
Death or Retirement - Section 6(4)
Certain provisions relating to death or retirement are exempt
from the SDA. However, retirement ages for male and female
employees should be equal.
Pregnancy or Childbirth - Section 2(2)
Special treatment (i.e. more favourable treatment) may
lawfully be afforded to women in connection with pregnancy or
childbirth.
Genuine Occupational Qualifications - Section 7
A person's sex may be a Genuine Occupational Qualification
(GOQ) for a job, in which case discrimination in recruitment,
opportunities for promotion or transfer to, or training for such
employment would not be unlawful. A GOQ cannot, however, apply to
the treatment of employees once they are in post, not too
discrimination on grounds of marriage, nor to victimisation. The
GOQ is not an automatic exception for general categories of jobs.
In every case it will be necessary for an employer to show that the
criteria detailed in the SDA apply to the job or part of the job in
question. A GOQ may be claimed only because of:
- physiology (excluding physical strength and stamina) or
authenticity - for example, a model or an actor;
- decency or privacy - for example, some changing room
attendants;
Note: The job being likely to involve the holder of the job
doing work, or living, in a private home and needs to be held by a
member of one sex because objection might reasonably be taken to
allowing a member of the other sex -
- the degree of physical or social contact with a person living
within the home, or
- the knowledge of intimate details of such a person's life,
which is likely because of the nature or circumstances of the job
or of the home, to be allowed to, or available to, the holder of
the job;
- the nature or location of the establishment which makes it
impracticable for the jobholder to live in premises other than
those provided by the employer (e. g. if the job is in a ship or on
a remote site) and the only available premises for persons doing
that kind of job do not provide both separate sleeping
accommodation for each sex, and sanitary facilities which can he
used in privacy from the other. In such a case, the employer may
discriminate by choosing for the job only persons of the same sex
as those who are already living, or normally live, in these
premises,
However, the exception does not apply if the employer could
reasonably be expected either to equip the premises with the
necessary separate sleeping accommodation and private sanitary
facilities, or to provide other premises, for a jobholder of the
opposite sex; *
- the fact that the establishment, or part of it, provides
special care, supervision or attention to people of one sex
only-for example, some jobs in a single-sex hospital;
- the fact that the job involves the provision of personal
services, promoting welfare or education, that are most effectively
provided by men (or by women) - for example, some probation
officers or wardens of residential hostels;
- laws regulating the employment of women;
- the laws and customs of the country in which part of the job is
to be carried out - for example, a job involving driving
in a country where women are forbidden to drive;
- the fact that the job is one of two to be held by a married
couple.
DEFINITION OF "EMPLOYMENT" - Section 82
"Employment" is defined in the SDA as meaning
employment under a contract of service or of a apprenticeship or a
contract personally to carry out any work or labour.
DIRECT SEX DISCRIMINATION - Section 1(1)(a)
This occurs where a person of one sex is treated less
favourably, on the ground of sex, than a person of the other sex
would be in the same or not material different circumstances.
INDIRECT SEX DISCRIMINATION - Section 1(1)(b)
Indirect sex discrimination occurs when an unjustifiable
requirement or condition is applied equally to both sexes, but has
a proportionately adverse effect on one sex, because the proportion
of one sex which can comply with it is much smaller than the
proportion of the other sex which can comply with it. For example,
a requirement to be mobile might bar more women than men. A
complainant would have to show that fewer women than men could
comply with such a requirement and that it is to her detriment that
she cannot comply. Where she cannot comply. Where the employer can
justify such a requirement without regard to sex there will be no
unlawful act. A finding of unlawful discrimination may be made even
though the employer has no intention to discriminate.
MARRIAGE DISCRIMINATION - Section 3(1)(a); Section 3(1)(
b)
Direct discrimination against a married person occurs where a
married person is treated less favourably on the grounds of marital
status, than an unmarried person of the same sex would be in the
same or not materially different circumstances. Indirect
discrimination against a married person is similar in concept to
indirect sex discrimination and may arise when a condition or
requirement is applied equally to married and unmarried persons of
the same sex but which is in fact discriminatory in its effect on
married persons. For example, a requirement to be mobile might bar
more married than single women.
DISCRIMINATION BY WAY OF VICTIMISATION - Section 4
This occurs where a person is treated less favourably than
other persons would be treated because he/ she has done something
by reference to the EPA or the SDA, for example, brought
proceedings or given evidence or information in a case under either
of those Acts or alleged (expressly or otherwise) that anyone has
committed an act which could constitute a breach of those Acts.
Victimisation is not unlawful if the allegation was false and not
made in good faith.
DISCRIMINATION IN RECRUITMENT - Section 6(1)
This section makes it unlawful for an employer to discriminate
when recruiting employees in the following ways:
- Section 6(1)(a) - in the arrangements made for deciding who
should be offered a job. (One example might be the instructions
given to a Personnel Officer or to an Employment Agency. Another
example might be advertising a job in a place where only one sex
would have the opportunity of seeing the advertisement.)
- Section 6(1)(b) - in relation to any terms offered (for
instance, in respect of pay or holidays). It is, for instance,
unlawful to offer a job (whether or not the candidate accepts),
where the terms would be a breach of the EPA should an employment
contract be entered into;
- Section 6(1)(c) - by refusing or deliberately omitting to offer
a person employment (for example, by rejecting an application or
deliberately refusing consideration of an application).
DISCRIMINATION IN THE TREATMENT OF PRESENT EMPLOYEES Section
6(2)
This section makes it unlawful for an employer to discriminate
in the following ways:
Section 6(2)(a) - in the way access is afforded to
opportunities for promotion, transfer or training, or to any other
benefits, facilities or services, or by refusing or deliberately
omitting to afford access to them; or
Section 6(2)(b) - by dismissal or the subjection to any other
unfavourable treatment.
DISCRIMINATION AGAINST CONTRACT WORKERS - Section 9(1)
This section covers contract workers, i.e. workers who are
sent to work for an organisation by another organisation that
employs them.
Section 9(2)
It is unlawful for the principal firm to discriminate on
grounds of sex or marriage:
- in the terms on which it allows the contract worker to do the
work or
- by not allowing the contract worker to do it or continue to do
it or
- in the way the contract worker is afforded access to any
benefits, facilities or services or by refusing or deliberately
omitting to afford access to any of them or
- by subjecting the contract worker to any other unfavourable
treatment.
Section 9(3)
A principal may rely upon the GOQ exception, where it is
applicable, to refuse to allow a contract worker to do, or to
continue to do the contract work.
Section 9(4)
Where a principle provides his contract workers with benefits,
facilities or services not materially different from those he
provides to the public, a complaint relating to the discriminatory
provision of such benefits, etc. would not fall under section 9,
but under section 29 of the SDA.
DISCRIMINATION BY TRADE UNIONS AND EMPLOYERS' ORGANISATIONS,
ETC. Section 12(1) and 12(2)
It is unlawful, for an organisation of workers or of employers
or any other organisation whose members carry on a particular
profession or trade for the purposes of which the organisation
exists, to discriminate on grounds of sex or marriage against
anyone applying for membership:
- in the terms on which it is prepared to admit the person to
membership; or
- by refusing or deliberately omitting to accept an application
for membership.
Section 12(3)
It is unlawful for such an organisation to discriminate on
grounds of sex or marriage against a member:
- in the way it affords access to any benefits, facilities or
services or by refusing or deliberately omitting to afford access
to them; or
- by depriving a person of membership or varying the terms of
membership; or
- subjecting to any other unfavourable treatment.
DISCRIMINATION BY EMPLOYMENT AGENCIES - Section 15(1)
It is unlawful for an employment agency to discriminate on
grounds of sex or marriage:
- in the terms on which they offer to provide any of their
services; or
- by refusing or deliberately omitting to provide them; or
- in the way in which they provide any of them.
Section 15(4)
Section 15(1) will not apply if the discrimination only
concerns employment that an employer could lawfully refuse to offer
to a woman (or a man).
Section 15(5) and 15(6)
Where an employment agency has the employer's assurance that a
vacancy is covered by one of the exceptions and this turns out not
to be the case, the agency has a defence if it can prove both that
it acted in reliance on a statement by the employer that its action
would not be unlawful and that it was reasonable for it to rely on
the statement. It is a summary offence punishable by a fine not
exceeding £5,000, knowingly or recklessly to make such a statement
that in a material respect is false or misleading.
DISCRIMINATORY ADVERTISEMENTS - Section 38(1) and 38(2)
The SDA makes it unlawful to publish or cause to be published
an advertisement that indicates, or might reasonably be taken to
indicate, an intention to discriminate unlawfully. An advertisement
would not he unlawful if it dealt with a job that was covered by an
exception.
Section 38(3)
An advertisement that uses a job description with a sexual
connotation (for example, 'waiter' 'salesgirl' or 'stewardess') is
taken as an intention to commit an unlawful discriminatory act,
unless the advertisement states that the job is open to men and
women or uses descriptions applying to both sexes (e.g. 'waiter' or
'waitress').
Section 38(4)
There will be cases where a publisher may not know whether a
particular advertisement is lawful. A publisher will not he held
liable if:
- he or she relied on a statement by the person placing the
advertisement that the publication would not he unlawful, for
example because the vacancy was covered by an exception and
- it was reasonable for the publisher to rely on the
statement.
Section 38(5)
It is an offence punishable on summary conviction with a fine
not exceeding £5,000, for anyone placing an advertisement knowingly
or recklessly to make a materially false or misleading statement to
the publisher as to its lawfulness.
INSTRUCTIONS TO DISCRIMINATE - Section 39
It is unlawful for a person who has authority over another
person or whose wishes are normally carried out by that other
person to instruct or attempt to procure another person (e.g. a
member of staff) to carry out an act of unlawful discrimination,
e.g. an instruction to an employment agency to discriminate.
PRESSURE TO DISCRIMINATE - Section 40
It is unlawful for a person to bring pressure to hear on
another person to carry out an act of unlawful discrimination, by
providing or offering any benefit or threatening any detriment; for
example, by a threat of industrial action to persuade an employer
to discriminate.
LIABILITY OF EMPLOYERS AND PRINCIPALS - Section 41
An employer is liable for any act done by an employee in the
course of the employment with or without the employers knowledge or
approval, unless the employer can show that such steps were taken
as were reasonably practicable to prevent the employee doing the
act in question. Similarly, a principal is liable for any act done
by an agent with the principal's authority.
Section 42
A person (for example, an employee or agent) who knowingly
aids another to do an unlawful act is also to be treated as having
done that act, unless it can be shown that he or she acted in
reliance on a statement that the act would not be unlawful and that
it was reasonable to rely on such a statement.
POSITIVE ACTION BY TRAINING BODIES
Section 47
Training bodies may apply to the Secretary of State for
Employment to become designated for the purpose of providing:
- training or encouragement for particular work where in the
previous 12 months one sex has been substantially under-represented
or;
- special training for persons following absence from employment
because of domestic or family responsibilities.
Note. Until February 1987, training bodies that wished to
run single sex courses needed special designation by the Secretary
of State. This is no longer required.
Positive Action is, however, confined to training and is still
not allowed in recruitment. Section 47 of the Act now applies to
any person, not just to training bodies.
POSITIVE ACTION BY EMPLOYERS - Section 48
This section of the SDA allows for positive action by
employers to overcome the effects of past discrimination, it allows
for training and encouragement where few or no members of one sex
have been doing particular work in the preceding 12 months. It does
not cover recruitment or promotion. Advice on the promotion of
equality of opportunity in employment is available from the EOC.
All EOC publications referred to are available from the EOC Offices
in Manchester.
Other Publications.
Many Policy Statements will cover race as well as sex
discrimination. For advice on racial discrimination refer to the
Code of Practice issued by the Commission for Racial Equality.
Examples of equal opportunities policy statements are the Trade
Union Congress Model Clause and the Confederation of British
Industry's Statement Guide.