8th March is International Women’s Day, celebrating women’s achievements, raising awareness against bias, and striving for equality.

In 2021, equality in the workplace should be a given, but how can you be sure you’re being treated equally and what should you do if you believe you’re not? How can a Solicitor help you? Following on from this week’s Law Society Solicitor Chat, Priya Patel from the FJG’s Dispute Resolution team has provided some answers to a few frequently asked questions.

What is classed as gender discrimination in the workplace?

Gender discrimination occurs when an individual experiences unfavourable treatment due to their gender.

The Equality Act 2010 (EqA) protects against unlawful direct and indirect discrimination and also protects against harassment and victimisation for the protected characteristic of ‘sex’.

These forms of discrimination can apply to both men, women and transgender individuals.

Discrimination can be found within 4 discernible categories:

  • Direct Discrimination: when an employee is treated unfairly because of a ‘protected characteristic’, such as sex. An example could be: someone is not offered a promotion because they are a woman and the job is offered to a less qualified man.
  • Indirect Discrimination: Indirect discrimination is concerned with acts, decisions or policies (broadly speaking) which are not intended to treat anyone less favourably, but which, in practice, have the effect of disadvantaging a group of people with a particular protected characteristic. Where such a policy disadvantages an individual possessing that characteristic, it will amount to indirect discrimination, unless it can be objectively justified.
  • Harassment: this is defined as ‘unwanted conduct’ related to a protected characteristic with the sole purpose of violating an employee’s dignity or creating an intimidating, hostile and offensive environment for them.
  • Victimisation: occurs when a person (A) subjects another person (B) to a detriment because either:
    • B has done a protected act.
    • A believes that B has done, or may do, a protected act.

A ‘protected act’ could be an employee asserting a right under the EqA or bringing proceedings under it for redress against their employer or someone employed by their employer.

I think I am suffering sex discrimination at work. What can I do?

The EqA protects employees from harassment or victimisation because of their sexuality or perceived sexuality and/or gender identity. Protection is available whether or not an employee is intentionally or unintentionally treated this way.

Employers are also responsible for any harassment meted out by an employee’s colleagues, if the discriminatory behaviour happens at: (i) work; (ii) at work-related events/business trips; or (iii) at social events organised by the employer.

We recommend that employees approach their line managers or their Human Resources departments before proceeding with instituting formal procedures in the first instance. Sometimes, discriminatory behaviour can be down to a lack of education about its form(s) and an amicable resolution can be found to see the parties move forward amicably, utilising various alternative dispute resolution techniques.

If an employee is invited to an informal meeting, they can ask a work colleague or trade union representative (if applicable) to attend with them.

In the event that no resolution to the problem can be found on the above referred to informal basis, a next step would be for employees to follow their employer’s grievance procedures. These procedures can normally be found in an employer’s company handbooks and can be obtained by contacting Human Resources; the same may be on a firm’s intranet site or may be contained within, or annexed to, a written contract of employment.

A grievance can be filed with an employer to seek formal redress.

Can my employer make me redundant whilst on maternity leave?

An employer cannot make an employee redundant because they are pregnant and/or on maternity leave.

In the event that a redundancy situation arises during an employee’s maternity or parental leave and ‘it is not practicable by reason of redundancy’ for the employer to continue to employ the employee under their existing contract of employment, the employee is entitled to be offered a suitable alternative role (where one is available) to start immediately after the existing contract ends. If a suitable alternative role exists but is not offered to the employee on maternity or parental leave, that employee has a potential claim for unfair dismissal.

Employers should ensure that the selection criteria used in a redundancy selection exercise are fair and non-discriminatory. Any pregnancy, maternity-related absence or paternity-related absence should not be counted when considering absence records. Any performance-related criteria should also account for the impact of any periods of absence due to pregnant and maternity on an employee’s performance.

Can my employer insist I return to the office if lockdown childcare commitments make this impossible?

In normal circumstances, it would not be appropriate for an employee to work from home while also providing childcare. However, employers may need to take a pragmatic approach. During any period that schools and nurseries are closed to children of the parents of non-key workers, the majority of parents in the workplace will face this issue and putting a blanket ban on working from home while also looking after children may preclude a large proportion of the workforce from performing any duties. In these unprecedented circumstances, employers may be prepared to take a more relaxed and flexible approach to homeworking and allow employees to work around their childcare responsibilities.

The ACAS working from home guidance suggests that more flexible homeworking arrangements could be considered.

How can employers ensure they are acting lawfully and avoiding gender discrimination?

Employers must establish up-to-date policies within their employee handbooks and/or their contracts such as; equality, diversity inclusion and anti-discrimination policies.

Employers need to take gender discrimination seriously and to ensure that all employees are able to identify how certain behaviours can be discriminatory, where to go and what to do if discrimination is suffered.  Employers should also make clear to all employees what sanctions there might be in cases where discrimination is found to have been suffered.

Employers are encouraged to establish a clear mission statement in the workplace; by communicating to all employees through education and diversity training, inclusion policies and strategies.

Our friendly team are available if you would like further advice, please contact us on 01206 700113 or email [email protected].