The outlawing of sexual discrimination in the workplace is a relatively modern legal development, starting with the Sex Discrimination Act 1975. The law in this area has been subject to rapid change and development, as the courts have been asked to interpret the legal provisions, and EU commitments have come into play. This dissertation seeks to analyse one aspect of the law of sexual discrimination in the workplace - that of indirect sexual discrimination. In doing so, the dissertation considers the development of sex discrimination law in the UK in relation to indirect sexual discrimination in terms of both legislative and case-law development, and compares the previous law with the new Equality Act 2010.
Chapter One: The Sex Discrimination Act 1975
In the White Paper “Equality for Women” which was published in the run up to the implementation of the Sex Discrimination Act 1975, the then government explained that:
“The status of women in society, the disabilities and disadvantages imposed on women, and their consequences, are social questions. They are legitimate subjects of the public interest and are appropriate matters for government action.”
This statement seemed to imply that women were considered to be an economic underclass requiring protection and a legislative method of increasing the standard of treatment they receive in the workplace in order to give them equality of employment opportunity when compared with men.From this it may be concluded that the anti-discrimination laws, including the Sex Discrimination Act 1975, were enacted to provide relief against disadvantage, rather than for example to be punitive as against discriminators.The Sex Discrimination Act 1975 was therefore enacted in order to provide a method of compensation for victims of discrimination, and in the process it would also deter future sex discrimination practice. The Act was therefore concerned with the effect of discrimination on victims rather than the precise nature of the conduct of the discriminators.
As a preliminary issue, it should be noted that the Sex Discrimination Act 1975 came into force at the same time as the Equal Pay Act 1970. The statutes were intended to be complementary and to be construed as a single code, although they were in fact mutually exclusive in their operation.The distinction was that the Equal Pay Act 1970 applied to contractual terms whereas the Sex Discrimination Act 1975 applied to discrimination on grounds of sex in matters outside of the contract, such as recruitment, promotion and dismissal, and was therefore much wider in scope. Another point to bear in mind is that because of its similarity to the Race Relations Act 1976, the Sex Discrimination Act 1975 can be interpreted with reference to case-law on that statute also.
The Sex Discrimination Act 1975 applied to discrimination on the grounds of sex in several areas, including employment, and although it is drafted in terms of women being the object of the discrimination, the Sex Discrimination Act 1975 actually applied equally to men as it did to women. The Sex Discrimination Act applied to discrimination at all stages of employment, from recruitment to dismissal.
However, some things are excluded from the scope of the Sex Discrimination Act 1975. For example, the application of the Act was modified in relation to the police, prison officers and ministers of religion.There was initially an exclusion in relation to provisions in relation to death or retirement, which allowed for different retirement ages. This exclusion was difficult to reconcile with EU law and in Barber v Guardian Royal Exchange Assurance Groupthe ECJ held that pensions could fall within discrimination law at EU level. The then government then introduced measures repealing the exclusion in the sex discrimination and equal pay legislation for provisions relating to death or retirement
As originally enacted the Sex Discrimination Act 1975 gave an exemption from liability for discrimination which complied with older legislation.However, in 1986 the European Commission found that this aspect of the Act was inconsistent with EU law and the Employment Act 1989 was then enacted to narrow the scope of the exemption.
However, the most controversial aspect of the scope of the Sex Discrimination Act 1975 related to whether the prohibition of discrimination on the grounds of sex extended to discrimination on grounds which were related to sex, such as gender reassignment and sexual orientation. The Courts consistently found that sexual orientation was not covered by the Sex Discrimination Act.However, in relation to gender reassignment, in the case of P v S and Cornwall County Council the European Court of Justice held that the dismissal of a transsexual who was due to undergo gender reassignment did beach EU discrimination law, and therefore the UK Sex Discrimination Act 1975 had to be interpreted to include gender reassignment. Indeed, this interpretation was given in Chessington World of Adventures Ltd v Reed and was later formalised by Regulations amending the Sex Discrimination Act.
The Sex Discrimination Act has been further supplemented to take into account discrimination on the grounds of sexual orientation, by the Employment Equality (Sexual Orientation) Regulations 2003. The Sex Discrimination Act 1975 may therefore be said to have been fairly wide in scope of application, and therefore had the potential to offer a high level of protection to persons subject to sex discrimination. What is now to be considered is how the particular provisions relating to indirect discrimination operated in practice.
Chapter Two: Indirect Discrimination
In the White Paper which preceded the Sex Discrimination Act 1975 the government originally proposed that only intentional discrimination would fall foul of the law.However, important members of the legislature were persuaded to change this view by a comparison with the way in which the law operated in the United States. The US Supreme Court decision of Griggs v Duke Power Company had laid the foundation for the concept of indirect discrimination, which was then to find a place in the Sex Discrimination 1975. In Griggs the relevant company had given an aptitude test to all job applicants and fewer black people than white people passed the test. It was demonstrated that the skills examined by the aptitude test were not in fact particularly relevant to the jobs that were being applied for, and in these circumstances it was held that the test was discriminatory.
The original definition of indirect discrimination in the Sex Discrimination Act 1975 was provided by section 1(1)(b) and required proof that a ‘requirement or condition' had been imposed which a considerably smaller proportion of women could comply with than men and which was to the detriment of the woman complainant. This requirement was interpreted very narrowly and was taken to mean that a discriminatory criterion was only unlawful if it amounted to an absolute bar to appointment etc if it was not met by the complainant.This significantly narrowed the potential protection offered by the Sex Discrimination Act 1975 in relation to indirect discrimination.
As a result of changes in EU law, a new and less technical definition of indirect discrimination was introduced by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001, which implemented the Burden of Proof Directive.The old definition still remains but only applies to non-employment cases. In the employment field the definition of indirect sex discrimination the relevant section of the Sex Discrimination Act 1975 became section 1(2)(b), which provided that a person discriminates a woman if:
“He applies to her a provision, criterion or practice which he applies or would apply equally to a man, but -
- which is such that it would be to the detriment of a considerably larger proportion of women than of men, and
- which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and
- which is to her detriment.”
The change of wording from ‘requirement or condition' to ‘provision, criterion or practice' meant that practices which did not amount to an absolute bar to appointment etc could nonetheless be indirectly discriminatory.This change was therefore an improvement to the law, as it widened the potential scope for protection against indirect sex discrimination. Indeed, in British Airways v Starmerthe EAT gave a wide definition to the phrase ‘provision, criterion or practice'. The case concerned a pilot who wanted to reduce her hours by half after having a baby. The company refused on the ground that it would be difficult to schedule and costly to train replacements. The pilot then sued for indirect sex discrimination on the basis that in practice it is harder for women with family responsibilities than men to work full time. The EAT held that the company's decision amounted to a ‘provision, criterion or practice' even though the company itself argued that it was a one-off decision rather than company policy.
Thus, a ‘provision, criterion or practice' under the Sex Discrimination Act 1975 could be interpreted widely. It could, for example be the necessity for the previous management training or supervisory experience,a contractual requirement that required employees to serve in any part of the United Kingdom at the employer's discretion,or the imposition of new rosters for train drivers.Even a ‘provision, criterion or practice' which would not be discriminatory in effect towards one sex in most situations, may still give rise to an indirect discrimination claim where the particular facts of the case show that the provision etc in those circumstances was discriminatory. For example, in Whiffen v Milham Ford Girls' School the Court of Appeal was required to consider the case of a school which utilised the local educational authority's model redundancy policy. This policy required that the non-renewal of temporary fixed-term contracts should be the first step taken. The policy was not discriminatory on the grounds of sex in a general context. However, in the case of the particular school, sex discrimination was found on the basis that 100% of men in that school were on permanent contracts but only 77% of female employees in the school were on permanent contracts. Women were therefore more likely to be terminated early. The provision was discriminatory in the context of the case.
Once the provision, criterion or practice which is alleged to be indirectly discriminatory has been identified, the claimant must then show adverse impact. This will have to be done by identifying a relevant group for comparison. In relation to indirect sex discrimination, the relevant group will be the group of the opposite sex.
In Jones v University of Manchester the University defendant had advertised a job for a graduate aged between 27 and 35. The claimant, who was 46, claimed that this amounted to indirect discrimination against her and argued that the relevant pool for comparison should be graduates who had obtained their degrees as mature students. The tribunal agreed as there was statistical evidence that the proportion of women graduates obtaining their degrees as mature students who could comply with the provision was considerably smaller than the male graduates who had obtained their degrees as mature students. However, the EAT and Court of Appeal overturned this decision, holding that the relevant pool for comparison was all men and women with the qualifications, not including the requirement complained of (age), rather than just those who had graduated as mature students.
However, the relevant pool for comparison should not contain persons who have no interest in the advantage or disadvantage in question. In Somerset CC and Another v Pike the Court of Appeal considered rules in the Teachers' Pension Scheme which prevented teachers who returned to part time work after retirement from joining the scheme. The claimant had taken early retirement due to ill health but later returned to part-time work. She argued that the rules amounted to indirect sex discrimination because they disadvantaged substantially more women than men as women are more likely to work part-time. The tribunal decided that the correct pool for comparison was the teaching profession as a whole, which resulted in only a slight disadvantage being found and thus no indirect discrimination. The Court of Appeal disagreed with this approach and instead favoured the EAT's method of determining the pool for comparison - that of those teachers wishing to return to work. This new method of determining the comparison pool resulted in a finding that the rules were indirectly discriminatory.
The original anti-discrimination statutory wording, including the Sex Discrimination Act 1975, provided that the proportion of women who could comply with the provision had to be ‘considerably smaller' than the comparator group (men) for a successful claim. However, the amended wording referred only to putting the claimant's group (ie women) at a particular disadvantage as compared with men. This could be shown through the use of statistics or through expert evidence
In Seymour-Smith the House of Lords asked the ECJ for guidance on the test: “for establishing whether a measure adopted by a Member State has such a degree of disparate effect as between men and women as to amount to indirect discrimination for the purposes of [what was] Article 119 of the EC Treaty unless shown to be based on objectively justified factors other than sex”. The ECJ stated that the way to consider cases such as these was to consider whether the measure had a more unfavourable impact on women than men, and then to turn to statistics.
This approach was followed in Rutherford v Secretary of State (No 2) in which a man complained that his inability to claim unfair dismissal and redundancy after the age of 65 amounted to indirect sex discrimination as more men worked beyond 65 than women. The Court of Appeal found that the tribunal should have compared the statistics on men and women who could satisfy the age requirement.
However, in London Underground v Edwards statistics were not referred to by the tribunal. In this case a female train driver had generally worked from 8am until 4pm. However, in order to save costs her employer introduced a new shift system which required that she commence work at 4.45am. The claimant was not able to work at this time as she was a single mother with a young child. Upon resigning she claimed indirect sex discrimination. The EAT held that the tribunal had been entitled to take into account their common knowledge that a proportionately larger number of women have childcare responsibilities than men, without examining any particular statistics.
Furthermore, although the claimant is required to show actual detriment, this detriment does not necessarily have to be physical or economic. In Shamoon a female chief inspector was prevented from doing the duty of staff appraisals after some members of staff complained about the manner in which she performed them. The House of Lords found that a detriment can occur if a reasonable worker would or might take the view that they had been disadvantaged in the circumstances in which they had to work without necessarily showing that a physical or economic consequence had occurred.
Thus, from the above discussion it may be seen that the protection offered by the Sex Discrimination Act 1975 was potentially very broad. It was relatively easy to establish that the act in question was a ‘provision, criterion or practice' and statistics could be used to help establish a detriment. Furthermore, the detriment in question did not have to be economic or physical, and would be considered in the context of all the circumstances of the particular case.
However, this is not the end of the picture. The Sex Discrimination Act 1975 provided, at section 1(2)(b)(ii) that an employer who was able to showÂÂ that the indirect discrimination was ‘justifiable irrespective of the sex of the person to whom it is applied' would not be liable for indirect sex discrimination. This was later amended to take into account the EC formulation of the indirect discrimination being such that it “cannot be shown to be a proportionate means of achieving a legitimate aim.”
Initially the defence was interpreted strictly. In Steel v Union of Post Office Workers it was held that there was a heavy onus on the employer to show that the discriminatory practice etc was necessary for his business, rather than simply being more convenient. However, the strictness of the test was then progressively weakened by a series of cases under the equivalent provision of the Race Relations Act 1976.For example, in the case of Ojutiku v Manpower Services Commission the Court of Appeal rejected the necessity test in favour of an approach which was based on the existence or otherwise of reasons which would be “acceptable to right-thinking people as sound and tolerable reasons.”
In Rainey v Greater Glasgow Health Boardthe House of Lords considered the justification test in relation to equal pay, which it stated would apply equally to the Sex Discrimination Act. This test was that the employer had to show that the measures which were indirectly discriminatory corresponded to a real need, were appropriate to achieve the objective and necessary to that end. It was stated in the Court of Appeal decision of Hampson v Department of Education and Sciencethat the test in Rainey and Ojutiku were not materially different and that what was required was an objective balance between the discriminatory effect and the reasonable needs of the business.
The question of whether a provision etc was justified under the Sex Discrimination Act 1975 was one of fact for the tribunal to decide. As a result of this interpretation, it was very difficult if not impossible to appeal the decision abut justification unless the wrong test had been used. This meant that inconsistency in the interpretation and application of the justification defence, and therefore of indirect discrimination in the Sex Discrimination Act 1975 itself, was able to remain. For example, in Home Office v Holmesit was held that a decision to refuse a woman to return to work part-time after maternity leave was indirectly discriminatory and not justified. Yet, in Greater Glasgow Health Board v Carey a very similar decision was found to be justified on the ground of administrative efficiency.
The burden of proof in relation to the justification defence was on the employer. In Bailey and others v The Home Office the Court of Appeal found that the tribunal had been entitled to find that there was a prima facie case of discrimination where the advantaged group was predominantly male but the disadvantaged group was of mixed sex. The Court found that:
“Where a difference in pay is established, and statistics seem to indicate a possibility of a disproportionate impact on women when looking at both the advantaged and disadvantaged groups as a whole, those statistics must provide sufficient evidence to get those carrying the burden over the hurdle of placing the onus on the employer.”
This decision was made prior to the new definition of indirect discrimination in the amended Sex Discrimination Act 1975. The position since then is very similar, in that it is for the claimant to show the existence of a provision etc and facts that indicate the possibility of disadvantage and then it will be for the employer to show either that there is no disadvantage on the ground of sex or that there is a justification defence.
As a result of the inclusion and interpretation of the justification defence in the Sex Discrimination Act 1975, the protection afforded against indirect discrimination was weakened. This was because uncertainty in relation to the justification defence remained, and therefore a potential claimant could not be sure, before going through the tribunal procedure, whether they would or would not be successful in their claim for indirect discrimination. Equally, the defendant employer could not be sure as to whether their justification defence would succeed. This is likely to have led to more cases going through the procedure (rather than reaching settlement or being dropped) than would have been the case if more certainty had existed surrounding the justification defence and indirect sex discrimination.
Thus, it may be concluded that the potential scope of the protection offered by the Sex Discrimination Act 1975 (as amended) was very broad, but that this protection was weakened by uncertainty in relation to the justification defence.
Chapter Three: The Equality Act 2010
Prior to the introduction of the Equality Act 2010 there were more than 100 different sets of equality legislation operating in the UK.The law had developed in a piecemeal fashion, leading to unnecessary complexity and thus uncertainty in the law.In February 2005 the then Government set up the Discrimination Law Review to address concerns about inconsistencies in the existing equality and discrimination law framework.The Review was asked to consider opportunities for developing a clearer and more streamlined framework of disability legislation. The result of the review was the Equality Act 2010, which replaces almost all of the previous discrimination legislation and codifies the different strands of the old statutory law relating to discrimination.
The Equality Act 2010 is structured to provide prohibited characteristics, of which sex is one (section 11) and sexual orientation is another (section 12). The Equality Act 2010 then goes on to provide different types of prohibited conduct. Section 19 prohibits indirect discrimination. Therefore, indirect sex discrimination is prohibited by the Equality Act 2010 through the reading together of sections 11 and 19.
However, although the structure of the Equality Act 2010 is different from that under the Sex Discrimination Act 1975 in relation to indirect sex discrimination, the content of the law prohibiting indirect sex discrimination is much the same as under the amended Sex Discrimination Act 1975.
Section 19 of the Equality Act 2010 provides that:
“(1) A person (A) discriminates against another (b) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's [such as sex].
(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if -
- A applies, or would apply, it to persons with whom B does not share the characteristic,
- it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
- it puts, or would put, B at that disadvantage, and
- A cannot show it to be a proportionate means of achieving a legitimate aim.”
The wording of the Equality Act 2010 may be subtly different from that under the Sex Discrimination Act 1975, however it is exactly the same in substance as that under the amended Sex Discrimination Act, and therefore the Equality Act 2010 cannot be said to have changed the law relating to indirect sex discrimination.
In conclusion, the legal provisions prohibiting indirect sex discrimination in the workplace have been subject to much development. The provisions now offer a broad scope of protection against indirect discrimination. However, the justification defence (now drafted as “a proportionate means of achieving a legitimate aim”), although necessary in order to balance the competing needs of individuals and businesses, inserts an element of uncertainty into the law, as whether a justification will be found to exist will heavily depend on the individual facts of the case. Unfortunately, the Equality Act 2010 has not taken the opportunity to address this issue and merely codifies the previous law relating to indirect sex discrimination post the amendments to the Sex Discrimination Act 1975.