It sounds like an easy difference to spot and address in terms of employer policies and practices but the concept of “sex” as a characteristic is broader than you might think initially for the purposes of discrimination law.
As mentioned in our introductory articles in this series, “sex” is one of the nine protected characteristics under the Equality Act 2017 (the “Act”) which gives rise to protection against sex discrimination, harassment and victimisation. The protection extends to job applicants, employees, and anyone contracted to perform work personally.
Is it a matter of biology?
Sex discrimination occurs when someone is treated unfavourably for reasons related to their sex. For some types of discrimination (see “direct discrimination” below) it is necessary to show less favourable treatment by comparison with someone of the opposite sex.
Whilst there is no specific definition of “sex” in the Act, it does refer to being a man or a woman, and states that men can share the protected characteristic with other men, and women with other women. The Act does not specifically refer to a biological definition of “man” or “woman”, so what about those who have changed their birth sex and who have transitioned, or are transitioning?
The short answer is that the position is not especially clear, though there is a recent Scottish case on the point. (NB Gender reassignment is a separate protected characteristic distinct from “sex” and will be addressed in a later article in our discrimination series.)
In the Scottish case mentioned above, it was concluded that the definition of “woman” includes a trans woman with a gender recognition certificate issued under the Gender Recognition Act 2004 (UK legislation). This is on the basis that, once a gender recognition certificate is issued for the purposes of the UK legislation, a person’s gender becomes for “all purposes” their acquired gender. The Isle of Man, meanwhile, has the Gender Recognition Act 2009, though the legal purposes for which the gender change is recognised are potentially narrower.
The Equality and Human Rights Commission (“EHRC”) has asked the UK Government to consider redefining “sex” for the purposes of equality legislation to mean biological sex so that it is sufficiently clear. Notwithstanding the effect of the Gender Recognition Act 2004, the EHRC considers that a biological definition of “sex” would create legal clarity in certain areas, including pregnancy and maternity, sport and data collection, although there could be ambiguity (or potential disadvantages) for equal pay and direct and indirect sex discrimination.
The issue is yet to be considered by the Isle of Man Employment and Equality Tribunal and it remains to be seen whether the Scottish case would be relevant in interpreting what “sex” means under the Act. On the other hand, if the UK does go ahead and amend or refine its definition of “sex” for the purposes of their equality legislation, this might prompt the Isle of Man to do likewise given the existing alignment between our equality laws and the UK’s.
Protection against discrimination in relation to sex
In the Isle of Man, the following are potential claims arising under the Act:
- Direct discrimination – where an employee is treated less favourably because of their sex than someone of the other sex would be treated in the same circumstances, ie advertising a job for a ‘waiter’ suggesting that the job is only open to men.
- Indirect discrimination – when a working practice, policy or rule is applied equally to all employees but puts someone of one sex at a disadvantage compared to the opposite sex, ie an employer brings in a policy which requires all employees to work full-time. This policy could disadvantage women as a group, since women (still) typically bear a greater proportion of domestic and childcare responsibilities than men. Unless the employer can objectively justify the need for a full-time worker to do a particular job, the requirement could be indirectly discriminatory.
- Harassment – where an employee is subject to unwanted conduct related to sex which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for them, or of violating their dignity, ie an employee seeking promotion is told by their manager that they will get the job if they sleep with them. There is no requirement for the employee to have made it clear that the conduct is unwanted in order for it to constitute harassment and a single incident can be enough.
- Victimisation – occurs when someone is treated less favourably as a result of being involved with a discrimination or harassment complaint which concerns the protected characteristic of sex. For example, an employer threatens to dismiss a member of staff because they think the employee intends to support a colleague’s sexual harassment claim.
There are limited exceptions employers may rely on when facing a claim of sex discrimination. These include where being of a particular sex is essential for the job (also known as a genuine occupational requirement), eg when auditioning for a male lead role in a play or recruiting for a female attendant for a female changing room at a gym. There are also specific occupational requirement provisions that deal with organised religion, employers with a religious ethos, and armed forces, amongst other narrowly defined derogations.
Case law examples
In terms of how the law has been applied in practice, the following are illustrations from decided (mostly UK) cases which help to put the legal protections in context:
- Failure to provide a toilet for the exclusive use of women amounts to direct sex discrimination (Abbas v ISS Facility Services[1])
- Requiring employees to work Monday to Friday 9 am to 6 pm in the absence of objective justification (and not properly considering a flexible working request) led to a finding of indirect sex discrimination in A Thompson v Scancrown Ltd t/a Manors (and an award of compensation in excess of £180,000)
- Failure by employer to take male employee’s complaint as seriously as female’s complaint constituted sex discrimination (Swaciak v Rowse Honey Limited)
- More senior male employee holding a female hotel worker around the waist was sexual harassment – ie unwanted conduct of a sexual nature (Wango v Royal Yacht Hotels Limited in the Jersey Employment Tribunal) – see also, with some parallels, the Irish case of Harty v Causeway Management Ltd in which the employer failed to carry out a proper investigation against an alleged male perpetrator of sexual harassment and allowed him to resign/retire;
- Claims of direct sexism and victimisation (plus equal pay) succeeded in the case of Macken v BNP Paribas where the claimant, a city banker, had been subjected over a long time to acts of sexism. She was then treated poorly when she did raise a complaint, so much so that the tribunal allowed aggravated damages as part of an overall award that exceeded £2m.
Guidance for employers
Employers are now generally more aware of the importance of having a diverse and inclusive workplace culture and how acts of sex discrimination can arise. At the same time, awareness and expectations of employees themselves have changed – working culture isn’t what it was 20+ years ago (and generally for the better). Inevitably, though, there are areas in which things can be tightened up and employers can protect themselves against sex discrimination and related claims:
- Recruitment – carefully consider how you write your job adverts and where these are advertised. Do not ask candidates personal questions at interview, only ask for information relevant to the job. Consider positive action if women or men are underrepresented in the company. Beware of bias in terms of qualities considered positive or desirable and whether these are objective or based on “stereotypes”.
- During employment – implement and uphold EDI (equality, diversity and inclusion) policies and values within the workplace, operate grievance and disciplinary procedures fairly bearing in mind duties to both sides where there is an issue between employees of different sexes, maintain a policy again bullying and harassment and provide equality training to people managers and decision makers.
- Promotion opportunities and appraisals – save for where an occupational requirement is justified, provide details of job opportunities to all relevant staff, irrespective of sex. Do not discourage someone from applying because of their sex. Consider the ways of measuring “suitability” and performance and whether these are fair and unbiased. (Research shows that, in many cases, assumptions about different behaviours as between men and women are not borne out by the evidence which means differentiation is largely down to bias.)
- Dismissals – clearly, it would be discriminatory to dismiss an employee solely on the basis of sex (subject to demonstrating that there is a genuine occupational requirement – see above). Consider, however, how capability and SOSR[2] dismissals may be arguable acts of sex discrimination and ensure the rationale for terminations is sound, non-discriminatory and evidence based.
- Redundancies – where there is an element of selection, ensure that the criteria are not directly or indirectly discriminatory on the basis of sex. Apply objective and measurable criteria, NB prioritising flexibility in relation to working hours may adversely affect single parents and therefore constitute sex discrimination as a greater proportion of single parents are women. Similarly, beware of decisions based on retaining employees who are perceived to be a “good fit”; certain groups may be less likely to join in workplace banter or after work socialising and hence be considered less of a “team player”.
The next article in our series will consider the protected characteristic of sexual orientation.
If you have any questions regarding sex discrimination (or any other equality topic), please do not hesitate to get in touch with our Employment Team.
How can we help?
Cains is able to provide clear, considered and tailored legal advice and administrative support necessary for ensuring that all of your needs are managed and executed in an efficient and timely manner.
The guidance in this note is for information purposes only and is not intended to be exhaustive. It is not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Cains only advises on the laws of the Isle of Man and accepts no responsibility for any errors, omissions or misleading statements or for any loss which may arise from reliance on the information in this note.
