The SDA applies to all facets of employment, including recruitment, terms and conditions, promotions, transfers, dismissals and training. It covers employees, applicants for employment and former employees.

Under the SDA, it is unlawful to:

• Discriminate directly by treating another person less favourably on the ground of her sex.
• Discriminate indirectly by applying a provision, criterion or practice that disadvantages people of a particular sex, without justification.
• Victimise someone because they have made or intend to make a complaint or allegation or have given evidence against someone else in relation to a complaint of sex discrimination.
• Subject someone to harassment related to sex or harassment of a sexual nature.
• Discriminate on the ground of gender reassignment.
• Discriminate against married people on the ground of their marital or civil partner status
• Discriminate on the grounds of pregnancy or maternity leave.

Types of sex discrimination

The SDA identifies the following types of discrimination:

• Direct discrimination.
• Indirect discrimination.
• Victimisation.
• Harassment.

Direct discrimination

A person discriminates against a woman if, on the ground of her sex, he treats her less favourably than he treats or would treat a man.

• Whether there has been less favourable treatment, and
• Whether that less favourable treatment was on the ground of the claimant's sex.

Less favourable treatment

To establish direct discrimination, the claimant must show that they have been treated less favourably in some way.

Not every difference of treatment will constitute "less favourable treatment". A practical example of this is dress code. There might be a difference in treatment if men and women are required to wear different uniforms, but as long as the standards set are equivalent, the treatment will not be considered to be less favourable.

Indirect discrimination

As well as prohibiting direct discrimination, the SDA seeks to prevent employers applying ostensibly neutral practices which have the effect of creating an unjustified disadvantage for women (or, conversely, for men). This is known as "indirect" discrimination.

Under the current definition, a person is liable for indirect discrimination if:

• They apply to a woman a provision, criterion or practice (PCP) which they apply or would apply equally to a man; and
• The PCP puts women at a particular disadvantage when compared to men; and
• The PCP puts the claimant in question at that disadvantage.

Indirect discrimination under the SDA often arises in the context of part-time working and women returning to work after maternity leave. This is because it is accepted by tribunals that women still generally bear greater childcare responsibilities than men. So, having a policy applicable to all employees that no employee may work part-time will indirectly discriminate against women since fewer women than men will be able to work full-time. For this reason, many claims of indirect sex discrimination also involve claims of a breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the flexible working provisions of the Employment Act 2002

Victimisation

Victimisation occurs where a person is discriminated against not because of their gender per se, but because they have sought to exercise or rely upon their rights under the SDA.

In order to benefit from protection, the treatment complained of must be for the reason that the person victimised has carried out one of a number of "protected" acts, namely:

• Has brought (or intends to bring) proceedings against the discriminator.
• Has given (or intends to give) evidence or information in connection with proceedings brought by any person against the discriminator, or any other person, under the SDA, the Equal Pay Act 1970 or sections 62 to 65 of the Pensions Act 1995.
• Has otherwise done anything (or intends to do something) under or by reference to the SDA, the Equal Pay Act 1970 or sections 62 to 65 of the Pensions Act 1995 in relation to the discriminator or any other person.
• Has alleged that the discriminator, or any other person, has committed an act which (whether or not the allegation so states) would amount to contravention of the SDA.

Making an allegation or giving information that turns out to be false can still constitute a protected act, provided that it was done in good faith.

Harassment

It is unlawful for an employer (A) to subject person whom it employs, or a person who has applied to it for employment (B), to harassment. The following types of harassment are set out in the SDA:

Sex harassment - Unwanted conduct related to B's sex or the sex of another person, which has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Sexual harassment - Unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. This need not be related to B's sex.

Harassment on grounds of gender reassignment - Unwanted conduct on the ground that B intends to undergo, is undergoing or has undergone gender reassignment, that has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Less favourable treatment for rejecting or submitting to harassment - On the ground of B's rejection of or submission to unwanted conduct of a kind mentioned above, A treats B less favourably than A would treat B had B not rejected, or submitted to, the conduct.

Who is protected?

In relation to employment, the SDA provides protection to anybody who is in employment within the wide definition.

Certain specific categories of individuals are also protected under the SDA, including:

• Police officers
• Ministers of religion
• Barristers and advocates
• Crown servants
• Contract workers
• Office holders

Discrimination against men

Although the SDA was primarily intended to protect women from discrimination on the grounds of their sex, the legislation also covers men. If you would like to discuss sex discrimination with us please call us on 01562 514867, email This e-mail address is being protected from spambots. You need JavaScript enabled to view it or contact us using the contacts page of our website.