There are now five pieces of legislation which refer specifically to gender equality. These are the Sex Discrimination Act 1975, the Equal Pay Act 1970, The Sex Discrimination (Gender Reassignment) Regulations 1999 and the Equality Act 2006 and more recently the Sex Discrimination (Amendment of Legislation) Regulations 2008.
In addition discrimination is recognised under Human Rights legislation and the Equality Bill, due to come into force in 2009.
The Sex Discrimination Act 1975 (SDA)
The Sex Discrimination Act 1975 (as amended 2003), makes sex discrimination generally unlawful in employment, training and related matters (where discrimination against married persons is also dealt with), in education, in the provision of goods, facilities and services, and in the disposal and management of premises.
The Act gives individuals a right of direct access to the civil courts and industrial tribunals for legal remedies for unlawful discrimination.
The Act also establishes the Equal Opportunities Commission (now merged along with the Centre of Racial Equality and the Disability Rights Commission as part of the Equality and Human Rights Commission) to help enforce the legislation and to promote equality of opportunity between the sexes generally. The Commission had a general responsibility for advising the Government on the working of the Act and the Equal pay Act 1970 (as amended).
The Act defines two kinds of sex discrimination, generally referred to as - direct and indirect sex discrimination.
Direct sex discrimination
This arises where someone treats a woman or man, on the ground of their sex, less favourably than they treat, or would treat, a man or woman in the same circumstances. For example, in considering whether a particular kind of treatment of a woman (or man) constitutes direct sex discrimination it is necessary to enquire:
- Whether it was less favourable than the treatment which was (or would be) accorded to a man (or woman); and, if so,
- Whether the less favourable treatment was on the ground of her sex ie whether the woman (or man) would not have been so treated but for the fact that she was a woman
Indirect sex discrimination
This consists of treatment which may be equal in a formal sense as between the sexes but is in practice discriminatory in its effect on one sex. It arises where a person applies to a woman a condition or requirement with which she much comply in order to qualify for, or obtain, some benefit or avoid some detriment, and where the condition or requirement satisfies all the follow criteria:
- It is applied, or would be applied, equally to men and to women
- It is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it
- It is to the detriment of the woman in question because she cannot comply with it
- It cannot be shown by the person applying it to be objectively justifiable irrespective of the sex of the person to whom it is applied
Discrimination against married persons in the employment field
The Act also defines direct and indirect discrimination against married persons in, and only in, the employment field. Direct discrimination against a married person arises where
“a person treats a married person of either sex, on the ground of his or her marital status, less favourably than that person treats or would treat an unmarried person of the same sex”
Sexual harassment at work
This may amount to unlawful sex discrimination under the Act. Sexual harassment may also be a criminal offence under the Criminal Justice and Public Order Act 1996 (as amended).
Relationship between the Sex Discrimination Act and the Equal Pay Act 1970
Rights are also given under either the Sex Discrimination Act or the Equal Pay Act to eliminate discrimination between women and men in pay and other terms and conditions of their contracts of employment such as piecework, output and bonus payments, pensions, holidays and sick leave.
The two Acts are complementary. All complaints of discrimination in the circumstances covered by the Equal Pay Act 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 Equal Pay Act, are dealt with under the Sex Discrimination Act.
The Equal Pay Act 1970 (EqPA)
The Equal Pay Act (amended 2003) provided for equal pay by giving a woman the right to equality in the terms of her contract of employment when she is employed:
- On like work - that is, work of the same or a broadly similar nature to that of a man
- On work rated as equivalent - that is, in a job which a job evaluation study of part or all of her employer’s workforce has shown to have an equal value to that of a man’s
- On work of equal value - that is, in a job which is equal in value to that of a man’s in terms of the demands made on her under such headings as effort, skill and decision-making.
Since the introduction of the Act, European Community law has extended significantly the concept of pay to include redundancy payments, travel concessions, employers’ pension contributions and occupational pension benefits as well.
The Act applies equally to men and women of all ages employed in Great Britain. The Act does not give anyone a right to claim equal pay with another person of the same sex.
Sex Discrimination (Gender Reassignment) Regulations 1999
The Sex Discrimination (Gender Reassignment) Regulations 1999 extended the Sex Discrimination Act 1975 to make it unlawful to discriminate on grounds of gender reassignment, but only in the areas of employment and vocational training. Unlike the Sex Discrimination Act, these Regulations do not apply to discrimination in education or in the provision of housing, goods, facilities and services.
In employment and vocational training, the Regulations protect individuals who are discriminated against or harassed because they:
- Intend to undergo gender reassignment
- Are currently undergoing gender reassignment
- Have already undergone gender reassignment
This ensures that the various stages of the gender reassignment process, including the very initial stage, where an individual indicates an intention to commence garner re-assignment are covered by these regulations.
Anyone who is treated less favourably by an employer or vocational training body on any of these grounds compared with someone for whom no gender reassignment grounds exist will have a claim under the Sex Discrimination Act.
The Equality Act 2006
Following the models established for race equality and disability equality in public bodies, the Single Equality Act 2006 introduced the Gender Equality Duty (GED). Fundamentally, the duty requires more than equal treatment for men and women. Public bodies must promote and take action to bring about gender equality. This involves:
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Looking at gender equality issues for men and women
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Understanding why inequalities exist and how to overcome them
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Creating effective service provision for all
The Gender Equality Duty has two parts; a “general duty” and a “Specific duty.
The General Duty
The GED require local authorities to promote gender equality in the design and delivery of services and address issues for their workforce. In addition, individuals will no longer have to bring cases against local authorities, in order to get gender inequalities dealt with. The onus will now be on local authorities to eradicate discrimination and to promote gender equality.
The act placed a general duty on public authorities to have due regard when carrying out their functions for the need to:
These three parts support each other, and in practice may overlap. For example, promoting equality of opportunity may also eliminate or prevent unlawful discrimination and harassment. However, the three parts are different therefore it is important to remember, that achieving one may not lead to achieving all three.
Unlawful discrimination
This includes discrimination as defined by the SDA, and discrimination that is unlawful under the EqPA. Public authorities are legally required to have due regard to the need to eliminate both forms of discrimination. In the SDA, unlawful discrimination is defined on the grounds of:
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Sex
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Pregnancy and maternity leave
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Gender reassignment
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Against married persons and civil partners
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Victimisation
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Harassment and sexual harassment.
Harassment and sexual harassment
Harassment and sexual harassment are unlawful under the SDA and the duty requires public authorities to have due regard to the need to eliminate them.
The duty to have due regard to the need to promote equality of opportunity between men and women is also relevant to ensuring that harassment is prevented before it occurs.
The duty on public authorities to have due regard to the need to promote equality of opportunity between men and women is a new aspect of the SDA. In order to achieve actual equality of opportunity, it is necessary to recognise that in certain circumstances women and men, because of their sex or gender roles, are not in the same position.
In some circumstances it may therefore be appropriate for public authorities to treat women and men differently, if that action is aimed at overcoming previous disadvantage. Examples include:
Positive Action
The law recognises that differences of treatment on the grounds of gender can sometimes be justified. For example, where one sex is under represented in particular work, a public authority could promote equality of opportunity by taking positive action to encourage members of the under represented sex to apply for such work, or to provide training to equip the under-represented sex for such work.
Women also make up the substantial majority of victims of domestic violence and rape. It would not be appropriate, therefore, for a local council to seek to fund refuge services on a numerically equal basis for men and for women. The promotion of equal opportunities between men and women requires public authorities to recognise that the two groups are not starting from an equal footing and identical treatment would not be appropriate.
In some instances, promoting equality of opportunity may require separate provision to be offered, as an alternative approach to improve take-up of services by the under-represented sex, where this is permitted under the SDA. An example of this might be to encourage men to increase their low take-up of primary health care services.
The gender equality duty and gender reassignment
The gender equality duty requires public authorities to have due regard to the need to eliminate unlawful discrimination and harassment against transsexual people in the fields of employment and vocational training.
The SDA provides that people who intend to undergo, are undergoing or have undergone gender reassignment are protected against discrimination and harassment in the fields of employment and related areas and in vocational training. This means that public authorities must have due regard to the need to eliminate unlawful discrimination and harassment in those fields against transsexual people when discharging their gender duty.
The scope of legal protection against discrimination on grounds of gender reassignment was extended in the Sex Discrimination Act in December 2007, by the implementation of the Goods and Services Directive 2004/113.
As a consequence, public authorities are under a duty to have due regard to the need to eliminate unlawful discrimination and harassment on grounds of gender reassignment in the provision of goods and services.
Due regard, proportionality and relevance
Having due regard means that the weight given to the need to promote gender equality is proportionate to its relevance to a particular function.
This means in practice public authorities should prioritise action to address the most significant gender inequalities within their remit, and take actions which are likely to deliver the best gender equality outcomes.
This is likely to mean focussing on functions or policies that have most effect on the public, or on the authority’s employees, or on a section of the public or on a section of the authority's employees.
The authority should ask whether particular functions could affect women and men in different ways, and whether functions can be carried out in a way which promotes equality of opportunity between men and women.
Meeting the gender equality duty in employment
To meet the gender equality duty as an employer, we will need to ensure that we have due regard to the need to eliminate unlawful discrimination and harassment in our employment practices. This includes discrimination and harassment of transsexual people on grounds of their gender reassignment. In practice this will involve aprocess of:
It is also recommended that the public bodies involve the workforce in the process and agree timescale over which it will take action.
Doing this will not only enable us to meet our obligations under the duty, but will also improve our ability to recruit and retain staff and improve service delivery.
The following issues are usually the most common considerations when prioritising actions:
Ensuring fair recruitment processes
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Avoiding concentration of women and men into particular areas of work and addressing it where it already exists
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Promoting and managing flexible working
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Ensuring high-level part-time work and supporting part-time workers
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Managing leave for parents and carers
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Managing pregnancy and return from maternity leave
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Eliminating harassment including sexual harassment
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Eliminating discrimination against, and harassment of, transsexual staff and potential staff
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Grievance and disciplinary procedures
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Redundancy
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Retirement
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Equal pay
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Work-based training opportunities
Caring responsibilities
Women are significantly more likely than men to work part-time, often because of childcare and other caring responsibilities. Part-time work in Britain is characterised by particularly low rates of hourly pay and reduced access to promotion and development opportunities.
In addition, lack of availability of suitable childcare restricts women's employment choices. Support to female and male employees with childcare responsibilities, through providing more flexible working and training opportunities or childcare provision or subsidy, will also contribute to the promotion of equality of opportunity between women and men.
Public bodies should therefore also gather evidence on the impact of caring responsibilities of their workforce. Based on that evidence and on consultation with employees and trade unions, they should consider whether it is appropriate to set objectives to address any relevant issues.
Specific duties
To meet the general duty public bodies have a specific duty to:
- Prepare and publish a gender equality scheme, showing how the authority will meet its general and specific duties and setting out its gender equality objectives
- Consider including objectives to address the causes of any gender pay gap
- Gather and use information on how the authority's policies and practices affect gender equality in the workforce and in the delivery of services
- Consult stakeholders and take account of relevant information in order to determine its gender equality objectives
- Assess the impact of current and proposed policies and practices on gender equality
- Implement the actions set out in its scheme within three years, unless it is unreasonable or impracticable to do so
- Report against the scheme every year and review the scheme at least
