Our third article in the series focusing on discrimination in the workplace, covers the protected characteristic of sex (gender). We discuss the current legal position, planned changes and suggested best practice for employers.

What is sex discrimination?

Sex discrimination occurs when someone is treated unfairly due to their gender. In the UK, it has been illegal for some time (subject to certain exceptions) with the law now incorporated into the Equality Act 2010. 

Despite the legal protections in place, individuals continue to face unfair treatment based on their sex including, for example, sexual and sex-based harassment and the underrepresentation of women in senior roles. In this article, we will explore the current legal position, some of the recent changes to legislation and effective strategies for promoting equality for all.

Legal position

As mentioned, sex discrimination in the UK is governed by the Equality Act 2010. This legislation explicitly prohibits treating someone less favourably because of their sex or putting an individual at a distinct disadvantage as a result of a particular provision, criterion or practice put in place by the employer which, although applied to everyone, places those of a particular gender at a disadvantage. The only exceptions where sex discrimination may be considered justified is if, for example, it is an occupational requirement or in the interest of national security. Employers may also take positive action to enable or encourage persons with the relevant characteristic to overcome a disadvantage without opening themselves up to a claim.

What the research says

Gender bias expert Dr. Jo Kandola, from D&I consultancy Pearn Kandola, highlights the prevalence of gender stereotypes that often lead to favouritism towards men in aspects such as job roles, seniority and pay. Their research shows that 76% of implicit biases associate women with nurturing traits, while men are associated with competence traits like strategic thinking and decisiveness, which are highly valued in business environments.

Treating individuals differently as an every-day occurrence, based solely on gender, will lead to women feeling less valued, underutilised, and this will result in talented individuals finding employment elsewhere. Dr Kandola encourages employers to raise awareness of gender stereotypes and their damaging impact on workplace dynamics. Addressing these stereotypes can help prevent discriminatory practices and promote a fair and inclusive working environment where all employees have equal opportunities to succeed – based on merit alone.

Sexual harassment and the new rules

Raising awareness of stereotypes and harassment will become even more important from 26 October 2024, when The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force amending the Equality Act 2010 and introducing a new duty on employers to take reasonable steps to prevent sexual harassment of their employees. If an employer has failed to take reasonable steps to prevent sexual harassment, employment tribunals will also have the authority to increase compensation awarded to a claimant by up to 25%. This can be a significant sum and employers should therefore assess internal practices to ensure appropriate measures are in place to protect the workforce, and that they can evidence the same.

Sex discrimination and the use of NDAs

Non-disclosure agreements (NDAs) are often used to protect an organisation’s confidential or sensitive information. However, they should not be used to prevent an employee from reporting sexual harassment or discrimination. In doing so, this could amount to perverting the course of justice and employers could face serious sanctions. NDAs should never be a tool to cover up harassment or prevent necessary conversations to address underlying issues, and express provisions allowing disclosures to appropriate bodies like the police should be included. Employers should therefore be mindful of this and seek careful legal advice before entering into an agreement of this nature to ensure they do not fall foul of the law. 

Best practice for employers

To create an inclusive workplace and to help prevent sex discrimination, employers may wish to consider the following best practices:

Establish clear policies

Develop comprehensive policies that address sex discrimination, harassment and retaliation to raise awareness within the workplace and reinforce the standards expected. Employers should clearly communicate these policies to all employees and ensure they understand their responsibilities as well as their rights. The policies should be subject to regular review and updated accordingly to demonstrate the employer is taking diversity seriously. It is a defence to a discrimination claim if the employer can clearly show they have taken all reasonable steps to prevent discrimination occurring and a clear policy that is regularly reviewed and communicated will be an important part of such a defence. 

Promote an inclusive culture

Employers should always lead by example – senior leaders and managers should champion diversity and inclusion and encourage respectful behaviour, language and attitudes that foster equity in the workplace. An inclusive culture is important throughout all stages of the working lifecycle starting with recruitment practices and ensuring for example, language in any job adverts is inclusive.

Provide training

Ensure staff are regularly trained on sex discrimination awareness, prevention and reporting and feel equipped to recognise and manage inappropriate behaviour at work. Employers might wish to include real-life scenarios and case studies to enhance employees’ understanding and help contextualise the issues at play.

Monitor and support the workforce

Employers may wish to collect data about the workforce (in compliance with data protection practices) to assess the impact of promotions, pay and recruitment initiatives by gender. This data can be used to identify any differences and eradicate any unintentional workplace biases such as gender disparities in leadership roles. Mentoring programmes may also be a good idea to help support women’s career progression, encouraging them to advance through the business.

Flexible working arrangements

Offering flexible working opportunities can help to accommodate different needs, including supporting those with parental or caring responsibilities. 

Concluding thoughts

Sex discrimination undermines workplace morale, productivity, and overall performance. By adhering to legal requirements and adopting best practices suggested above, employers can create an environment where everyone has equal access to opportunities and can thrive based on merit, not gender. Fostering a fair workplace not only benefits employees, but also the organisation as a whole.