We’re all equal… aren’t we?

The masses of cases still being brought under the Sex Discrimination Act 1975 would seem to suggest that we’re not. Jean-Yves Gilg and Donna Moxham examine the steps Europe has been taking to ensure that discrimination becomes a thing of the past


On 22 November 2001 the Court of Appeal cleared the Lord Chancellor of allegations of sex discrimination brought by a female solicitor, Jane Coker, after the Lord Chancellor appointed a male friend to be his special adviser (see (1) Coker (2) Osamor v (1) Lord Chancellor (2) Lord Chancellor’s Department (2001) LTL 22/11/2001). Although Ms Coker’s claim was unsuccessful, this high-profile case demonstrates the inventive uses that can be made of the employment law legislation originally enacted to protect women.

The concept of protecting women in the workplace born out of the sexual revolution of the 1970s has come a long way since it was first introduced into law. The protection afforded by the Sex Discrimination Act 1975 (‘SDA’) has been extended well beyond the limited scope originally envisaged and is now frequently invoked in the courts.

Much of our employment law originates in Europe, both in the form of Directives and in the judgments of the European Court of Justice (‘ECJ’). The SDA was enacted to implement the Equal Treatment Directive, which applied the principle of equal treatment to employment, vocational training, promotion and working conditions.

The UK courts’ interpretation of the protection enshrined in the SDA has evolved in tandem with similar developments in Europe. If the relevant EC law is not clear, a case can be referred to the ECJ for a preliminary ruling. As a result, the ECJ has been able to ensure a minimum level of uniformity in the interpretation of sex discrimination law throughout the EC Member States at the same time as the concept has developed and extended in EC law.

The SDA recognises three types of sex discrimination: direct discrimination, indirect discrimination and positive discrimination.

Direct discrimination

Under s. 1(1)(a) SDA, an employee can bring a claim for direct discrimination where they feel they have has received “less favourable treatment” on grounds of sex. There is no statutory defence to such a claim, but “genuine occupational qualifications”, such as a requirement to employ someone of a particular gender to uphold decency, may act as an exception.

The ECJ’s interpretation of direct sex discrimination has evolved from a strict application of the principle of ‘equal pay for equal work’ to a more lateral approach to the issue of equal treatment. As a result, the ECJ held in Marshall v Southampton & South-West Hampshire Area Health Authority (1986) 2 WLR 780 that a requirement that a female employee should retire at an earlier age than her male counterparts was a direct breach of the Equal Treatment Directive. The principle of equal treatment was extended to cover pregnant women in Dekker (1991) IRLR 27, where denying access to employment on grounds of pregnancy was found to constitute direct sex discrimination because only women could become pregnant.

The protection of pregnant workers has remained an area that has pushed the boundaries of equal treatment, testing the very meaning of sex discrimination. For example, in Webb v EMO (1994) ECR I-3567 Webb had been recruited to replace a pregnant employee with a view to staying on after her return. Webb became pregnant herself shortly after starting work, and was dismissed. Applying the SDA, the industrial tribunal compared Webb’s situation to that of a man recruited in the same circumstances, notifying his employer that he would be absent for a similar period. The ECJ found that the principle of equal treatment for men and women rendered unlawful the dismissal of an employee recruited for an unlimited term, initially to cover another employee’s maternity leave, and who could not continue to work because she fell pregnant herself shortly after her recruitment.

A finding of sex discrimination involves comparing the claimant with an appropriate “comparator” to determine whether the claimant has been treated any less favourably on grounds of sex. The comparator is usually someone of the opposite sex in an equivalent position and are not always easy to identify; the difficulty in defining a suitable male comparator for a pregnant claimant goes without saying and is partially addressed by Directive 92/85/EEC, which provides a specific regime for the protection of pregnant workers. Recent discussion on comparators has also centred around appropriate comparators for transsexuals and homosexuals.

Direct discrimination in the UK includes victimisation and sexual harassment. In contrast to its common meaning, victimisation is defined in s.4 SDA as discrimination against an employee for asserting or seeking to assert their rights under the discrimination legislation. The courts recognised that sexual harassment was a form of direct discrimination in Strathclyde Regional Council v Porcelli (1986) IRLR 134, where repeated suggestive remarks and physical contact with a female employee constituted less-favourable treatment of a sexual nature to which a man would not have been vulnerable.

Indirect discrimination

Section 1(1)(b) SDA protects employees against indirect sex discrimination, where the application of criteria other than sex leads to discrimination against one sex in practice. In contrast to the simple “less favourable treatment” test of direct discrimination, an employer is guilty of indirect discrimination under the SDA if an unjustifiable “provision, criterion or practice” (previously “requirement or condition”) is imposed that allows a considerably smaller proportion of women than men to apply and that works to the detriment of a female employee who cannot comply with it.

A critical judicial advance in this area has been the ECJ’s prohibition of indirect discrimination. The ECJ decreed that national measures will indirectly discriminate on grounds of sex contrary to EC law where they work to the disadvantage of far more women than men (see Boyle v Equal Opportunities Commission (1998) IRLR 717). This was applied in R v Secretary of State for Employment, ex parte Seymour-Smith (1999) 3 WLR 460, where part-time workers were prevented from bringing a claim for unfair dismissal because they did not meet the minimum two-year qualifying period required to bring a claim, a condition with which fewer women than men could comply. The ECJ found that because a significant number of women were employed in this particular sector, the national provisions were contrary to the Equal Treatment Directive and should be set aside. However, the ECJ also stated that national measures that indirectly discriminated against individuals of one sex could be justified by objective factors unrelated to discrimination based on sex. The defence of justification has been consistently reiterated by the ECJ, for example, in relation to national legislation reserving priority access to applicants who had completed compulsory military service, which was only applicable to men (C-79/99 Schnorbus v Land Hessen).

Seymour-Smith returned from the ECJ to the UK courts for a decision on the claim (R v Secretary of State for Employment, ex parte Seymour-Smith (1999) LTL 17/2/2000). The House of Lords followed the ECJ’s decision to find that the two-year qualifying period was prima facie indirectly discriminatory, but held that the discrimination was justifiable. However, the qualifying period for unfair dismissal was reduced to one year following the ECJ’s ruling, demonstrating how actions for indirect discrimination have contributed to the development of other aspects of employment law.

Positive discrimination

Positive discrimination is permitted in the UK under s.48 SDA to encourage training or opportunities for one sex over another where the favoured sex has been under-represented in the relevant work for 12 months before the discriminatory act.

The question for the ECJ in cases involving positive discrimination is the lawfulness in EC law of national measures for the active promotion of the under-represented sex. The issue made its first significant appearance in the mid-1990s (Kalanke v Freie Hansestadt Bremen (1996) ICR 314 and Marschall v Land Nordrhein-Westfalen (2001) ICR 45). Positive discrimination, or the promotion of the under-represented sex, irrespective of competence or qualification, is not lawful in EC law. However, the ECJ has indicated that a narrower definition of positive discrimination, ie the promotion of the under-represented sex in situations where male and female applicants are equally qualified, is lawful in EC law.

In Kalanke, national legislation giving unconditional preferential treatment to women with qualifications similar to male candidates was held to be contrary to EC law because measures giving women equality of arms were lawful but those that gave them priority were not. However, the ECJ departed slightly from that position in Marschall by ruling that preferential treatment might be necessary to balance prejudice against women. In the meantime, the Commission issued an interpretative amendment to the Equal Treatment Directive to the effect that positive discrimination could be lawful where the preferred sex is under-represented provided that national legislation did not prevent the employer from taking account of particular individual circumstances. The ECJ has subsequently followed this approach to positive discrimination: Positive discrimination under the SDA must now be read in line with the ECJ position.

Transsexuals

The ECJ’s creativity in interpreting the Equal Treatment Directive was probably best exemplified in P v S & Cornwall County Council (1996) ICR 794, where the Directive was deemed to protect a person who had undergone gender reassignment. The ECJ held that the dismissal of a transsexual for a reason related to a proposed gender reassignment was unlawful in EC law. The appropriate comparator was a person of the same sex as the transsexual before the gender reassignment. Moving radically away from the idea that the Directive might have been adopted solely to further economic objectives, the ECJ referred specifically to a fundamental right of equality in Community law that provided protection against all forms of discrimination.

As a result of that ruling, the Sex Discrimination (Gender Re-assignment) Regulations 1999 were enacted to amend the SDA. The Regulations protect transsexuals both before and after gender reassignment by expressly including discrimination on the ground of gender reassignment in the scope of direct discrimination on the ground of sex.

The position of transsexuals was considered recently in Chief Constable of West Yorkshire v A (2001) LTL 21/11/2001, where a male-to-female transsexual had been prevented from joining the police force because she would not be able to carry out intimate searches of women. The Employment Appeal Tribunal found that although the employment tribunal had erred in its reasoning that the police could not argue that the discrimination was lawful on the basis of a “genuine occupational qualification” exception, the EAT did not substitute a finding that the transsexual had not been unlawfully discriminated against. Considering the consistency of the Regulations with the Equal Treatment Directive, the EAT held that a constable’s liability to be called upon to perform intimate physical searches was only a theoretical possibility and, therefore, created no absolute bar on the appointment of transsexuals to the police force. Accordingly, the Regulations were not incompatible with the Equal Treatment Directive.

Sexual orientation

The SDA does not apply to sexual orientation. In R v Ministry of Defence, ex parte Smith (1995) LTL 6/11/95 the Court of Appeal held that a ban on homosexuals in the armed forces was lawful discrimination within the Equal Treatment Directive.

The ECJ confirmed that the Equal Treatment Directive did not protect against discrimination on the ground of sexual orientation in Grant v South West Trains (1998) LTL 18/2/98, in which it was held that a condition requiring employees to live in a stable relationship with a person of the opposite sex in order to benefit from a travel concession did not constitute direct sex discrimination where the condition was applied regardless of the sex of the employee. The ECJ expressly stated that the Grant decision did not extend to cover sexual orientation and suggested that the appropriate comparator was a homosexual person of the opposite sex.

The issue of sexual orientation came back to the Court of Appeal in Pearce v Governing Body of Mayfield School (2001) LTL 31/7/2001. The claimant was a lesbian teacher who claimed discrimination on grounds of sex in the form of homophobic taunts and abuse by pupils at the school at which she taught. The Court of Appeal found that such abuse was inflicted on the basis of the teacher’s sexual orientation rather than her sex so did not constitute sex discrimination within the meaning of the SDA.

In contrast, the European Court of Human Rights has held that the ban on homosexuals in the armed forces violates the right to respect for private life in Art.8 European Convention on Human Rights (Lustig Prean v UK (1999) LTL 1/6/2000) and Lady Justice Hale suggested, obiter dicta, in Pearce that the acts complained of (which took place before the Human Rights Act 1998 came into force) were incompatible with the teacher’s rights under the Convention so an action could lie against a public authority for such acts. However, workers currently remain unprotected by employment legislation from discrimination on the ground of sexual orientation.

The future

The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 recently reversed the burden of proof in sex discrimination cases. As a result, once a claimant has established facts from which an employment tribunal can conclude that discrimination occurred, the burden of proof shifts to the employer to prove that it is not guilty of such discrimination. This step provides encouragement to anyone in the UK seeking to enforce their rights under the SDA.

The concept of sex equality in EC law has evolved dramatically over the last 30 years. From a simple tool to achieve undistorted competition in a single market, it has grown to acquire official status as a fundamental principle in its own right and enshrined in the new Arts.2 and 3 EC Treaty, as amended by the Amsterdam Treaty. In addition, the new Art.13 EC Treaty provides the EU institutions with a specific legal basis for the adoption of anti-discrimination legislation. Two new Directives based on Art.13 have been adopted to protect workers against other forms of discrimination; the first addresses discrimination on grounds of race, and the second addresses discrimination based on religion, sexual orientation, age or disability. Those Directives contain provisions on indirect discrimination and the effective promotion of equal treatment. The Commission has also put forward a proposal to amend the Equal Treatment Directive, which remains silent on those issues, along the same lines as the Directives. The Commission’s proposal redefines sex discrimination to include sexual harassment and incitement to sex discrimination, defines indirect discrimination, includes specific provisions on maternity and paternity leave, clarifies activities that Member States can exclude from the scope of the Directive and allows positive measures in favour of women. The proposal requires Member States to adopt sufficiently deterrent measures to eradicate sex discrimination from the workplace (including anti-victimisation measures). It also requires the appointment of independent bodies for the promotion of sex equality within the meaning of all the equality Directives. Under the proposal organisations can now also bring proceedings on behalf of victims of sex discrimination. The proposal is currently awaiting its second reading in the European Parliament.

The UK has until 2 December 2003 to implement the two new Directives. In the meantime, the government is consulting on whether new legislation implementing the Directive on sexual orientation should outlaw discrimination on general grounds of sexual orientation, or whether there should be specific provisions on hetero-, homoand bisexuality.

Equality in the workplace has come a long way since the early twentieth century. However, sex discrimination remains rife, as the number of cases currently brought under the SDA intimates. Discrimination is a complex area that has undergone many changes, most of which have originated in Europe, and it looks set to continue to develop and expand as further European measures are implemented.

Jargon Buster

Comparator

Standard used to compare individuals in similar position to assess whether they are treated equally

Direct discrimination

Treating individuals differently on the basis of identifiable criteria, eg sex, race

Directives

Instructions to Member States to adopt specific implementing measures to achieve broad objectives

Equal treatment

Treating alike individuals in similar positions

European communities

The European Community (EC), formerly the European Economic Community, the European Atomic Energy Community (Euratom) and the European Coal and Steel Community (ECSC)

European Union (EU)

European Communities and two other “pillars” (Justice and Home Affairs and Common Foreign and Security Policy)

EC law/community law

Body of law developed under the EC Treaty

EC Treaty

The Treaty of Rome 1957 as amended by the Single European Act, the Treaty of Maastricht and the Treaty of Amsterdam

EU law

Law adopted under the EU Treaties (broad meaning); law adopted under pillars II and III (strict meaning)

Indirect discrimination

Seemingly neutral measures adversely discriminating against a specific group of individuals

Primary legislation

The Treaties

Positive discrimination

Actively favouring disadvantaged groups of individuals

Secondary legislation

Regulations, Directives and Decisions adopted on the basis of any of the Treaties