Thirty Years of Sex Discrimination Legislation:
Where We Are Today
by Frank Griffin
IMPORTANT
All articles in GLP Solicitors' Your Rights section refer to the law in England and Wales.
[Note: This article concerns the law in
England and Wales]
This year marks the 30th anniversary of the first Sex Discrimination Act, which was introduced in 1975. In order for this legislation to be effective and supportive for individuals who are affected by Discriminatory Acts, because of their Sex or Sexual Orientation, it is a very important for social development, that people know their rights.
It is easy to simply ignore the topic, or just think that life is more about exciting parties time for enjoyment rather than the hard slog reflecting about changes to the law that have arisen the result of the Employment Equality (Sexual Orientation) Regulations 2003. But this time some heavy reading is vital!
Currently, I am acting on behalf of a young lesbian couple in a case which is on-going, therefore, it is not possible to explain in too great any details the events, or to identify the individuals. The importance of legislation for people who have been the victims of Sex Discrimination was underlined for me, when my client said “I never knew I was protected by the law in these situations”.
It is difficult to establish direct sex discrimination as frequently it is a matter of denial. At times self denial is a major problem when inviting Employment Tribunals to draw an inference of unlawful discrimination from the evidence.
Because of that difficulty it has led a number of people to be less than impressed with the regard of the affect of the discrimination law. It has been particularly so in cases of “harassment”. However, new Employment Legislation in 2004 provides clear definitions of harassment under the Sex Discrimination Act.
Discrimination is a complex matter. In the ACAS guide for Employers and Employees on Sexual Orientation in the Work Place; the following is suggested: “Employers are encouraged to consider whether their policies and procedures respect the sensitivity of individuals of Sexual Orientation and the importance of maintaining a high level of confidentiality”.
Key matters here are “confidentiality” and “sensitivity”, both of which are often neglected or not applied – and noticeable by their absence in the particular case, which we are in the process of fighting on behalf of our clients.
Iit is abundantly clear for many people sensitivity and confidentiality are not being respected in their practical experience.
The code goes on to say: “Workers of all Sexual Orientation should feel welcome and safe in their workplace and the dignity for all should be respected”. This is a worthy comment – it carries greater weight than just advice because this comment forms part of the Code of Practice. Therefore, it will be presented to the Tribunal to support part of our clients’ case, which is yet to be tested.
One major hurdle that appears to arise so often with people who are suffering from harassment is the problem of a strict time limit for raising their complaint. The strict time limits for Employment Tribunal claims for Sex Discrimination mean that any claim must be brought before the three-month time limit, starting from the event.
However, there is a wider discretion of “in all the circumstances of the case, it (the Employment Tribunal) considers that it is just equitable to do so”. The Tribunal may allow an ‘out of time’ case in certain circumstances to continue and to be heard.
Frequently, victims of such Discrimination feel they do not have rights, sadly, as they are often shattered by the experiences they have suffered in the past.
The definition of harassment is “unwanted conduct which violates people’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment”. Such a definition means there are a significant number of employees who come within scope of that clear definition of harassment.
Direct discrimination has its difficulties; indirect discrimination is very complex with the added hurdle of time limits being strictly required. These negative aspects should not be sufficient to deter individuals who believe they may have been treated unfairly because of their Sexual Orientation. Always seek professional advice as soon as practicable.
There is a changing social and legal environment today and when the Employment Equality (Sexual Orientation) Regulations 2003 came into force, it made it unlawful for employers to discriminate against employees on the grounds of sexual orientation.
It is keenly anticipated that the Gender Recognition Act of 2004 should be enforced by April 2005 – and that will be of great assistance.
Everyone who is determined to see they are treated with dignity and are not prepared to be degraded or humiliated by an offensive environment should now be awake and alert. Those rights exist by statue and with Parliamentary approval.
These laws only become effective if they are used and tested, even pushed to their limit. But it is more important that individuals have the confidence and the belief that if they are discriminated against by someone because of their sexual irientation, they must take act promptly and get quality legal advice.
Employment law spreads wide and in many ways. It impacts directly upon all including substantial minorities. Legal entitlements may be lost simply because they are not tried and tested.
If complaints are not raised within the timescale, or these dreadful experiences lead to the decision to quietly depart, rather than to stand and demand protection against that discrimination, then the opportunity to get legal redress is lost.
Harassment by itself is behaviour that is offensive. However, it can be frightening or distressing. It can easily be identified if it is an act of intentional bullying which is obvious and on occasions violent in a physical or a verbal way.
It can also be subtle and insidious and involving a mix of insulting nicknames, derogatory, teasing and name calling or behaviour which is upsetting. It may exist within a general culture, for example an environment which appears to tolerate the telling of homophobic jokes.
An often forgotten fact is that not just organisations can be held responsible, but also their staff are individually are responsible if harassment takes place in the work place. Also it needs to be clearly recognised it is ‘pre employment’, ‘during employment’ or ‘post employment’. Here are three brief examples:
Pre Employment
Whilst being interviewed, a job applicant says she has the same sex partner. Although, she has all the skills and competence required, the company does not offer her the job because she is a lesbian. That would be a direct discriminatory act and the fact that she is a job applicant would not prevent her from bringing a claim to an Employment Tribunal.
During Employment
An example may be of a male worker who has a same-sex partner and is continually referred to in a derogatory way, this maybe by constant use of a female name, which as an individual they find humiliating. That is harassment during the course of employment, and would allow a claim to be brought; if the employer failed to deal with the situation. It may well not require a resignation or employment termination to bring the claim to Tribunal.
Post Employment
For example – a manager maybe approached by someone from another organisation, because Miss A has applied for a job and asked for a reference. The manager says he cannot recommend the worker as she was not accepted by fellow workers because of her sexual orientation, the staff objected because she was bisexual. It is a direct discriminatory act even though the employment has ended. Again, a case maybe brought to Tribunal to challenge that detriment.
These three brief illustrations demonstrate a wide range of legislation, there is much in the way of new equality rights within Employment legislation. If you believe your rights have been infringed or if you simply want to check your legal position, please don’t forget the clock maybe your hardest hurdle, so if you think your rights have been violated, act now.
■ Frank Griffin specialises in employment law. He can be reached at employment@glplaw.com
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09 February 2005
