The outlawing of sexual favoritism in the workplace is a comparatively modern legal development, get downing with the Sex Discrimination Act 1975. The jurisprudence in this country has been capable to rapid alteration and development, as the tribunals have been asked to construe the legal commissariats, and EU committednesss have come into drama. This thesis seeks to analyze one facet of the jurisprudence of sexual favoritism in the workplace – that of indirect sexual favoritism. In making so, the thesis considers the development of sex favoritism jurisprudence in the UK in relation to indirect sexual favoritism in footings of both legislative and case-law development, and compares the old jurisprudence 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 tally up to the execution of the Sex Discrimination Act 1975, the so authorities explained that:
“The position of adult females in society, the disablements and disadvantages imposed on adult females, and their effects, are societal inquiries. They are legitimate topics of the public involvement and are appropriate affairs for authorities action.”
This statement seemed to connote that adult females were considered to be an economic lower class necessitating protection and a legislative method of increasing the criterion of intervention they receive in the workplace in order to give them equality of employment chance when compared with men.From this it may be concluded that the anti-discrimination Torahs, including the Sex Discrimination Act 1975, were enacted to supply alleviation against disadvantage, instead than for illustration to be punitory as against discriminators.The Sex Discrimination Act 1975 was hence enacted in order to supply a method of compensation for victims of favoritism, and in the procedure it would besides discourage future sex favoritism pattern. The Act was hence concerned with the consequence of favoritism on victims instead than the precise nature of the behavior of the differentiators.
As a preliminary issue, it should be noted that the Sex Discrimination Act 1975 came into force at the same clip as the Equal Pay Act 1970. The legislative acts were intended to be complementary and to be construed as a individual codification, although they were in fact reciprocally sole in their operation.The differentiation was that the Equal Pay Act 1970 applied to contractual footings whereas the Sex Discrimination Act 1975 applied to discrimination on evidences of sex in affairs outside of the contract, such as enlisting, publicity and dismissal, and was hence much wider in range. Another point to bear in head is that because of its similarity to the Race Relations Act 1976, the Sex Discrimination Act 1975 can be interpreted with mention to case-law on that legislative act besides.
The Sex Discrimination Act 1975 applied to favoritism on the evidences of sex in several countries, including employment, and although it is drafted in footings of adult females being the object of the favoritism, the Sex Discrimination Act 1975 really applied every bit to work forces as it did to adult females. The Sex Discrimination Act applied to favoritism at all phases of employment, from enlisting to dismissal.
However, some things are excluded from the range of the Sex Discrimination Act 1975. For illustration, the application of the Act was modified in relation to the constabulary, prison officers and curates of religion.There was ab initio an exclusion in relation to commissariats in relation to decease or retirement, which allowed for different retirement ages. This exclusion was hard to accommodate with EU jurisprudence and in Barber 5 Guardian Royal Exchange Assurance Groupthe ECJ held that pensions could fall within favoritism jurisprudence at EU degree. The so authorities so introduced steps revoking the exclusion in the sex favoritism and equal wage statute law for commissariats associating to decease or retirement
As originally enacted the Sex Discrimination Act 1975 gave an freedom from liability for favoritism which complied with older legislation.However, in 1986 the European Commission found that this facet of the Act was inconsistent with EU jurisprudence and the Employment Act 1989 was so enacted to contract the range of the freedom.
However, the most controversial facet of the range of the Sex Discrimination Act 1975 related to whether the prohibition of favoritism on the evidences of sex extended to discrimination on evidences which were related to sex, such as gender reassignment and sexual orientation. The Courts systematically found that sexual orientation was non covered by the Sex Discrimination Act.However, in relation to gender reassignment, in the instance 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 favoritism jurisprudence, and hence the UK Sex Discrimination Act 1975 had to be interpreted to include gender reassignment. Indeed, this reading was given in Chessington World of Adventures Ltd V Reed and was subsequently formalised by Regulations amending the Sex Discrimination Act.
The Sex Discrimination Act has been farther supplemented to take into history favoritism on the evidences of sexual orientation, by the Employment Equality ( Sexual Orientation ) Regulations 2003. The Sex Discrimination Act 1975 may hence be said to hold been reasonably broad in range of application, and hence had the possible to offer a high degree of protection to individuals capable to sex favoritism. What is now to be considered is how the peculiar commissariats associating to indirect favoritism operated in pattern.
Chapter Two: Indirect Discrimination
In the White Paper which preceded the Sex Discrimination Act 1975 the authorities originally proposed that merely knowing favoritism would fall foul of the law.However, of import members of the legislative assembly were persuaded to alter this position by a comparing with the manner in which the jurisprudence operated in the United States. The US Supreme Court determination of Griggs v Duke Power Company had laid the foundation for the construct of indirect favoritism, which was so to happen a topographic point in the Sex Discrimination 1975. In Griggs the relevant company had given an aptitude trial to all occupation appliers and fewer black people than white people passed the trial. It was demonstrated that the accomplishments examined by the aptitude trial were non in fact peculiarly relevant to the occupations that were being applied for, and in these fortunes it was held that the trial was discriminatory.
The original definition of indirect favoritism in the Sex Discrimination Act 1975 was provided by subdivision 1 ( 1 ) ( B ) and required cogent evidence that a ‘requirement or status ‘ had been imposed which a well smaller proportion of adult females could follow with than work forces and which was to the hurt of the adult female plaintiff. This demand was interpreted really narrowly and was taken to intend that a prejudiced standard was merely improper if it amounted to an absolute saloon to appointment etc if it was non met by the complainant.This significantly narrowed the possible protection offered by the Sex Discrimination Act 1975 in relation to indirect favoritism.
As a consequence of alterations in EU jurisprudence, a new and less proficient definition of indirect favoritism 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 merely applies to non-employment instances. In the employment field the definition of indirect sex favoritism the relevant subdivision of the Sex Discrimination Act 1975 became subdivision 1 ( 2 ) ( B ) , which provided that a individual discriminates a adult female if:
“He applies to her a proviso, standard or pattern which he applies or would use every bit to a adult male, but –
- which is such that it would be to the hurt of a well larger proportion of adult females than of work forces, and
- which he can non demo to be justifiable irrespective of the sex of the individual to whom it is applied, and
- which is to her detriment.”
The alteration of give voicing from ‘requirement or status ‘ to ‘provision, standard or pattern ‘ meant that patterns which did non amount to an absolute saloon to appointment etc could however be indirectly discriminatory.This alteration was hence an betterment to the jurisprudence, as it widened the possible range for protection against indirect sex favoritism. Indeed, in British Airways V Starmerthe EAT gave a broad definition to the phrase ‘provision, standard or pattern ‘ . The instance concerned a pilot who wanted to cut down her hours by half after holding a babe. The company refused on the land that it would be hard to schedule and dearly-won to develop replacings. The pilot so sued for indirect sex favoritism on the footing that in pattern it is harder for adult females with household duties than work forces to work full clip. The EAT held that the company ‘s determination amounted to a ‘provision, standard or pattern ‘ even though the company itself argued that it was a one-off determination instead than company policy.
Therefore, a ‘provision, standard or pattern ‘ under the Sex Discrimination Act 1975 could be interpreted widely. It could, for illustration be the necessity for the old direction preparation or supervisory experience, a contractual demand that required employees to function in any portion of the United Kingdom at the employer ‘s discretion, or the infliction of new rolls for train drivers.Even a ‘provision, standard or pattern ‘ which would non be prejudiced in consequence towards one sex in most state of affairss, may still give rise to an indirect favoritism claim where the peculiar facts of the instance show that the proviso etc in those fortunes was prejudiced. For illustration, in Whiffen v Milham Ford Girls ‘ School the Court of Appeal was required to see the instance of a school which utilised the local educational authorization ‘s theoretical account redundancy policy. This policy required that the non-renewal of impermanent fixed-term contracts should be the first measure taken. The policy was non prejudiced on the evidences of sex in a general context. However, in the instance of the peculiar school, sex favoritism was found on the footing that 100 % of work forces in that school were on lasting contracts but merely 77 % of female employees in the school were on lasting contracts. Womans were hence more likely to be terminated early. The proviso was prejudiced in the context of the instance.
Once the proviso, standard or pattern which is alleged to be indirectly prejudiced has been identified, the claimant must so demo inauspicious impact. This will hold to be done by placing a relevant group for comparing. In relation to indirect sex favoritism, the relevant group will be the group of the opposite sex.
In Jones v University of Manchester the University suspect had advertised a occupation for a alumnus aged between 27 and 35. The claimant, who was 46, claimed that this amounted to indirect favoritism against her and argued that the relevant pool for comparing should be alumnuss who had obtained their grades as mature pupils. The tribunal agreed as there was statistical grounds that the proportion of adult females alumnuss obtaining their grades as mature pupils who could follow with the proviso was well smaller than the male alumnuss who had obtained their grades as mature pupils. However, the EAT and Court of Appeal overturned this determination, keeping that the relevant pool for comparing was all work forces and adult females with the makings, non including the demand complained of ( age ) , instead than merely those who had graduated as mature pupils.
However, the relevant pool for comparing should non incorporate individuals who have no involvement in the advantage or disadvantage in inquiry. In Somerset CC and Another V Pike the Court of Appeal considered regulations in the Teachers ‘ Pension Scheme which prevented instructors who returned to portion clip work after retirement from fall ining the strategy. The claimant had taken early retirement due to ill wellness but subsequently returned to parttime work. She argued that the regulations amounted to indirect sex favoritism because they disadvantaged well more adult females than work forces as adult females are more likely to work half-time. The court decided that the right pool for comparing was the learning profession as a whole, which resulted in merely a little disadvantage being found and therefore no indirect favoritism. The Court of Appeal disagreed with this attack and alternatively favoured the EAT ‘s method of finding the pool for comparing – that of those instructors wishing to return to work. This new method of finding the comparing pool resulted in a determination that the regulations were indirectly prejudiced.
The original anti-discrimination statutory diction, including the Sex Discrimination Act 1975, provided that the proportion of adult females who could follow with the proviso had to be ‘considerably smaller ‘ than the comparator group ( work forces ) for a successful claim. However, the amended diction referred merely to seting the claimant ‘s group ( ie adult females ) at a peculiar disadvantage as compared with work forces. This could be shown through the usage of statistics or through adept grounds
In Seymour-Smith the House of Lords asked the ECJ for counsel on the trial: “for set uping whether a step adopted by a Member State has such a grade of disparate consequence as between work forces and adult females as to amount to indirect favoritism for the intents 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 manner to see instances such as these was to see whether the step had a more unfavorable impact on adult females than work forces, and so to turn to statistics.
This attack was followed in Rutherford v Secretary of State ( No 2 ) in which a adult male complained that his inability to claim unjust dismissal and redundancy after the age of 65 amounted to indirect sex favoritism as more work forces worked beyond 65 than adult females. The Court of Appeal found that the court should hold compared the statistics on work forces and adult females who could fulfill the age demand.
However, in London Underground V Edwards statistics were non referred to by the court. In this instance a female train driver had by and large worked from 8am until 4pm. However, in order to salvage costs her employer introduced a new displacement system which required that she commence work at 4.45am. The claimant was non able to work at this clip as she was a individual female parent with a immature kid. Upon vacating she claimed indirect sex favoritism. The EAT held that the court had been entitled to take into account their common cognition that a proportionally larger figure of adult females have child care duties than work forces, without analyzing any peculiar statistics.
Furthermore, although the claimant is required to demo existent hurt, this hurt does non needfully hold to be physical or economic. In Shamoon a female main inspector was prevented from making the responsibility of staff assessments after some members of staff complained about the mode in which she performed them. The House of Lords found that a hurt can happen if a sensible worker would or might take the position that they had been disadvantaged in the fortunes in which they had to work without needfully demoing that a physical or economic effect had occurred.
Therefore, from the above treatment it may be seen that the protection offered by the Sex Discrimination Act 1975 was potentially really wide. It was comparatively easy to set up that the act in inquiry was a ‘provision, standard or pattern ‘ and statistics could be used to assist set up a hurt. Furthermore, the hurt in inquiry did non hold to be economic or physical, and would be considered in the context of all the fortunes of the peculiar instance.
However, this is non the terminal of the image. The Sex Discrimination Act 1975 provided, at subdivision 1 ( 2 ) ( B ) ( two ) that an employer who was able to showAA that the indirect favoritism was ‘justifiable irrespective of the sex of the individual to whom it is applied ‘ would non be apt for indirect sex favoritism. This was subsequently amended to take into history the EC preparation of the indirect favoritism being such that it “ can non be shown to be a proportionate agencies of accomplishing a legitimate aim.”
Initially the defense mechanism was interpreted purely. In Steel v Union of Post Office Workers it was held that there was a heavy burden on the employer to demo that the prejudiced pattern etc was necessary for his concern, instead than merely being more convenient. However, the stringency of the trial was so increasingly weakened by a series of instances under the tantamount proviso of the Race Relations Act 1976.For illustration, in the instance of Ojutiku V Manpower Services Commission the Court of Appeal rejected the necessity trial in favor of an attack which was based on the being or otherwise of grounds 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 trial in relation to equal wage, which it stated would use every bit to the Sex Discrimination Act. This trial was that the employer had to demo that the steps which were indirectly prejudiced corresponded to a existent demand, were appropriate to accomplish the aim and necessary to that terminal. It was stated in the Court of Appeal determination of Hampson v Department of Education and Sciencethat the trial in Rainey and Ojutiku were non materially different and that what was required was an nonsubjective balance between the prejudiced consequence and the sensible demands of the concern.
The inquiry of whether a proviso etc was justified under the Sex Discrimination Act 1975 was one of fact for the tribunal to make up one’s mind. As a consequence of this reading, it was really hard if non impossible to appeal the determination abut justification unless the incorrect trial had been used. This meant that incompatibility in the reading and application of the justification defense mechanism, and hence of indirect favoritism in the Sex Discrimination Act 1975 itself, was able to stay. For illustration, in Home Office v Holmesit was held that a determination to decline a adult female to return to work half-time after pregnancy leave was indirectly prejudiced and non justified. Yet, in Greater Glasgow Health Board V Carey a really similar determination was found to be justified on the land of administrative efficiency.
The load of cogent evidence in relation to the justification defense mechanism was on the employer. In Bailey and others v The Home Office the Court of Appeal found that the court had been entitled to happen that there was a leading facie instance of favoritism where the advantaged group was preponderantly male but the deprived group was of assorted sex. The Court found that:
“Where a difference in wage is established, and statistics seem to bespeak a possibility of a disproportional impact on adult females when looking at both the advantaged and disadvantaged groups as a whole, those statistics must supply sufficient grounds to acquire those transporting the load over the hurdle of puting the burden on the employer.”
This determination was made prior to the new definition of indirect favoritism in the amended Sex Discrimination Act 1975. The place since so is really similar, in that it is for the claimant to demo the being of a proviso etc and facts that indicate the possibility of disadvantage and so it will be for the employer to demo either that there is no disadvantage on the land of sex or that there is a justification defense mechanism.
As a consequence of the inclusion and reading of the justification defense mechanism in the Sex Discrimination Act 1975, the protection afforded against indirect favoritism was weakened. This was because uncertainness in relation to the justification defense mechanism remained, and hence a possible claimant could non be certain, before traveling through the tribunal process, whether they would or would non be successful in their claim for indirect favoritism. Equally, the suspect employer could non be certain as to whether their justification defense mechanism would win. This is likely to hold led to more instances traveling through the process ( instead than making colony or being dropped ) than would hold been the instance if more certainty had existed environing the justification defense mechanism and indirect sex favoritism.
Therefore, it may be concluded that the possible range of the protection offered by the Sex Discrimination Act 1975 ( as amended ) was really wide, but that this protection was weakened by uncertainness in relation to the justification defense mechanism.
Chapter Three: The Equality Act 2010
Prior to the debut of the Equality Act 2010 there were more than 100 different sets of equality statute law runing in the UK.The jurisprudence had developed in a bit-by-bit manner, taking to unneeded complexness and therefore uncertainness in the law.In February 2005 the so Government set up the Discrimination Law Review to turn to concerns about incompatibilities in the bing equality and favoritism jurisprudence framework.The Review was asked to see chances for developing a clearer and more streamlined model of disablement statute law. The consequence of the reappraisal was the Equality Act 2010, which replaces about all of the old favoritism statute law and codifies the different strands of the old statutory jurisprudence associating to favoritism.
The Equality Act 2010 is structured to supply forbidden features, of which sex is one ( subdivision 11 ) and sexual orientation is another ( subdivision 12 ) . The Equality Act 2010 so goes on to supply different types of forbidden behavior. Section 19 prohibits indirect favoritism. Therefore, indirect sex favoritism is prohibited by the Equality Act 2010 through the reading together of subdivisions 11 and 19.
However, although the construction of the Equality Act 2010 is different from that under the Sex Discrimination Act 1975 in relation to indirect sex favoritism, the content of the jurisprudence forbiding indirect sex favoritism is much the same as under the amended Sex Discrimination Act 1975.
Section 19 of the Equality Act 2010 provides that:
“ ( 1 ) A individual ( A ) discriminates against another ( B ) if A applies to B a proviso, standard or pattern which is prejudiced in relation to a relevant protected feature of B ‘s [ such as sex ] .
( 2 ) For the intents of subdivision ( 1 ) , a proviso, standard or pattern is prejudiced in relation to a relevant protected feature of B ‘s if –
- A applies, or would use, it to individuals with whom B does non portion the feature,
- it puts, or would set, individuals with whom B portions the feature at a peculiar disadvantage when compared with individuals with whom B does non portion it,
- it puts, or would set, B at that disadvantage, and
- A can non demo it to be a proportionate agencies of accomplishing a legitimate aim.”
The diction of the Equality Act 2010 may be subtly different from that under the Sex Discrimination Act 1975, nevertheless it is precisely the same in substance as that under the amended Sex Discrimination Act, and hence the Equality Act 2010 can non be said to hold changed the jurisprudence associating to indirect sex favoritism.
In decision, the legal commissariats forbiding indirect sex favoritism in the workplace have been capable to much development. The commissariats now offer a wide range of protection against indirect favoritism. However, the justification defense mechanism ( now drafted as “a proportionate agencies of accomplishing a legitimate aim” ) , although necessary in order to equilibrate the viing demands of persons and concerns, inserts an component of uncertainness into the jurisprudence, as whether a justification will be found to be will to a great extent depend on the single facts of the instance. Unfortunately, the Equality Act 2010 has non taken the chance to turn to this issue and simply codifies the old jurisprudence associating to indirect sex favoritism post the amendments to the Sex Discrimination Act 1975.