I am being discriminated against at work because of my gender, what should I do?

Do you feel that you are being treated less favourably at work because you are, or perhaps you are not, a particular gender? Has your employer put in a place a new policy or working practice that puts you, because you are a man or a woman, at a particular disadvantage? Two important pieces of advice for anyone reading this article: know your rights and know the action you should take if you are the subject of sex discrimination.

Gender (or sex) equality is the concept that men and women should be treated equally and given the same rights and opportunities across all sectors of society. Their aspirations, viewpoints and needs should be valued and favoured equally. It may be surprising that in this day and age gender discrimination in the workplace still occurs, however the unfortunate reality is that it remains rife. 66% of all young people are said to have experienced sex discrimination first-hand, with many of these also stating that it negatively affected their mental health.

What are my rights?

The Equality Act 2010 (“the Act”) provides a framework that aims to protect individuals against less favourable treatment, disadvantage and discrimination. It is intended to advance and enable equal opportunity for all. Under the Act, sex is one of the nine “protected characteristics” against which an employer cannot discriminate. There is also other legislation which protect against less favourable terms, including pay.

The Act states that you must not be discriminated against because:

• You are (or you are not) a particular sex;
• Someone thinks you are of the opposite sex (perceptive discrimination);
• You are connected to someone of a particular sex (associative discrimination).

The discriminatory treatment does not have to be intentional to be unlawful. However, it is important to be aware that there are some circumstances in which differential treatment related to your sex may be regarded as lawful.

Is there more than one type of discrimination that I am protected against?

Yes. The Act protects you against four main types of discrimination:

1) Direct discrimination – this is when your employer subjects you to less favourable treatment because of your sex. The treatment will be compared to the treatment of someone whose circumstances are not materially different to yours, apart from the fact that they are of the opposite sex.

2) Indirect discrimination – your employer applies a “provision, criterion or practice” in the workplace which indirectly places women or men at a disadvantage.

For example, your employer may enforce a policy requiring all employees to work full time. It could disadvantage women who need to work part-time due to childcare responsibilities and therefore be indirectly discriminatory towards women.

Your employer may seek to defend their actions against a claim for indirect discrimination by suggesting that the actions were “objectively justified” as they were a “proportionate means of achieving a legitimate aim”.

3) Harassment – somebody at work, whether it be a colleague or your employer, engages in offensive or unwanted conduct related to your sex. This, as a result, creates an intimidating, hostile, degrading or humiliating environment for you to work in. The conduct need not be deliberate or purposeful, provided that you can show that it has the effect referred to above.

4) Victimisation – you are subjected to a detriment at work because you have brought proceedings under the Act for sex discrimination or you are supporting somebody who has brought proceedings by, for example, providing evidence. Alternatively, you have complained about unlawful, discriminatory conduct in a grievance.

What should I do next?

It is always wise, as a first step, to discuss your concerns in confidence with your Line Manager or a member of the HR Department with a view to resolving the matter informally if you feel comfortable to do so. Your employer may suggest a mediation to repair any strained relationships. This of course depends on the circumstances, the severity of the conduct and the sensitivity of the matter. Before raising your concerns, it would be wise to prepare the following information:

1. Who has discriminated against you? Was there anybody else involved? Were there any witnesses?
2. What happened? When and where did it happen?
3. Was there more than one incident? What were the circumstances surrounding each incident?
4. What was the effect of the conduct?

If the conduct ensues and cannot be rectified informally, then you should raise a formal grievance. You should follow to your employer’s formal grievance procedure, or in the absence of this, refer to the ACAS website for advice on the procedure. It may be sensible to consult a solicitor if you are unsure. Upon receipt of your grievance, your employer should ensure that your concerns are appropriately and thoroughly investigated via the correct procedure. Suitable action should be taken by your employer to rectify the matter.

If matters do not improve then it may be necessary to consider taking legal action. Satisfying the complex legal tests for discrimination cases can be difficult and it is therefore advisable to consult a solicitor to assess the merits and strength of your claim(s). They will be able to engage in appropriate correspondence with your employer and, if necessary, represent you in making a claim in the Employment Tribunal.

Are there any time limits?

Unlike some employment law claims, you do not have to have a minimum length of continuous employment to bring a claim for discrimination – the protection kicks in from when you apply for the role (so as to protect you from any discrimination at the application stage).

However, don’t forget the time limit for issuing a claim in the Employment Tribunal. You have 3 months less one day from the date of the discriminatory act. If the discrimination is continuing or takes place over a period of time, your solicitor can assist you in working out when the time starts to “run” from. Remember to factor in time to complete the compulsory ACAS Early Conciliation process.

We would always advise you to take independent legal advice before taking formal action. It is important to take advice on your personal circumstances. No two cases are ever the same, so we wouldn’t suggest comparing notes with a friend or colleague who has made a successful claim for discrimination.

If you are not sure and would like further advice on your legal position or you have experienced issues with your employer you can contact our specialist employment solicitors on 0330 822 3451 or request one of the team to call you back online.