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Farrer & Co | 100 years of voting: Sex discrimination law review

This year marks 100 years since (at least some) women were granted the right to exercise their democratic right to vote in the UK. Whilst there is much to celebrate in terms of women's progress in this country in the last century, sex discrimination in the workplace and beyond still continues. The Fawcett Society has published a Sex Discrimination Law Review, which examines whether sex discrimination law in the UK is fit for purpose.

Amongst other things, the review highlights a troubling statistic: that an estimated 54,000 pregnant women and working mothers are made redundant, or pressured to leave their jobs each year.

The Society has made a number of recommendations to address these ongoing difficulties, for example:

  • Mandatory equal pay audits for employers of 250 or more;
  • Civil penalties for non-compliance with gender pay gap reporting, with the Equality and Human Rights Commission being given the power and resources to carry out enforcement activity;
  • The reintroduction of equal pay questionnaires in Employment Tribunal proceedings;
  • The time limit for all discrimination and harassment claims linked to pregnancy and maternity being increased to six months;
  • The removal of the qualifying period for Statutory Maternity Pay;
  • A right to reasonable time off and facilities for breastfeeding; and
  • Extending paternity leave to six weeks, paid at 90% of earnings, to be taken any time in the year after the baby is born.

In this post-Weinstein era, the report serves as a timely reminder of what employers can do to avoid discrimination in the workplace:

  • Think carefully about potential discrimination in recruitment and establish clear processes to avoid discriminatory stereotyping. For example, when advertising for jobs, avoid referring to a particular gender, ensure that you only request personal information which is relevant to the job and potentially consider 'positive action' if women or men are under-represented in the organisation. (As a reminder, positive action was introduced in the Equality Act 2010 and allows an employer, when faced with two or more candidates of equal merit in a recruitment or promotion decision, to select a candidate from a particular group that faces a disadvantage or is under-represented over a candidate who isn't from that group, to achieve diversity in its workforce.)
  • Ensure that there are no terms and conditions which would exclude or disadvantage someone because of their gender or in the case of a woman because of pregnancy or maternity; for example pay, bonus, flexible working and parental leave.
  • Ensure that everyone has equal access to training and that staff who work flexibly or part time are able to attend training. People may feel disadvantaged if they are not able to attend training due to their working patterns.
  • Have a robust and unambiguous equal opportunity policy in place. This helps to raise awareness amongst staff and should discourage discriminatory attitudes and behaviour. It will also help staff and applicants feel confident about equal opportunity and an agenda of non-discrimination in your organisation.
  • Establishing and adhering to a process for resolving complaints of discrimination that arise. You should ensure that where there are complaints, they are dealt with promptly and in line with the procedures in your policies.

We should not forget that compared to some other countries, women and men in Britain are on a much more equal par. In some countries, girls are not considered worthy enough to attend school, female infanticide rates are prolific and forced marriage is an ingrained part of the culture. In such societies, there is a whole cultural paradigm where women are simply seen as lesser beings. Our practices in the UK can help slowly to erode that attitude by continuing to fly the flag for equality and enhancing existing rights for women. From an employer perspective, a fundamental point for employers is to ensure that they are not basing employment decisions on gender, even where decisions and potential discrimination is happening at a subliminal level. It is important that we all face up to our potential unconscious biases, as it is often this unacknowledged unconscious bias which prevents the achievement of equal opportunities for all.

We will continue the theme of how to tackle sex discrimination in our WorkLife blog in two weeks, when Maria Strauss will discuss the importance of cultural change when it comes to preventing sexual harassment in the workplace and what employers can do to achieve this.

If you require further information on anything covered in this briefing please contact Shehnal Amin or your usual contact at the firm on 020 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

(c) Farrer & Co February 2018

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