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March 2017

News Briefing

March 2017
England and Wales

PARITY

Parity action group

Sex Discrimination

Sex discrimination law
Sex discrimination law in England and Wales is based on nine main pieces of legislation, about 90 statutory instruments, and a range of guidance documents.  Primary legislation includes the Equal Pay Act 1970 and the Sex Discrimination Act 1975 (SDA 1975), both as subsequently developed by case law and regulations, and recently the new Equality Act 2006 (EA 2006).  The SDA 1975 was amended in certain respects in September 1986 (SDA 1986) following a European Court of Justice (ECJ) decision earlier that year in the Marshall case on the unequal compulsory retirement ages previously allowed for men and women.  Allowable sex discrimination (or ‘positive action’) in training opportunities and in employment advertisements was confirmed at the same time.

 

The SDA 1975 covers essentially discrimination in employment, education, and the provision of goods, facilities and services to the public.  It largely excludes other areas including other legislation which conflicts.  The EA 2006 came into force in April 2007 and sets up a new Equality and Human Rights Commission, in place of the three previous commissions on Equal Opportunities, Racial Equality, and Disability Rights.  The Act imposes a more rigorous obligation on public authorities, and all organisations and private companies which work for them, to eliminate unlawful discrimination and harassment and to promote equality of opportunity between men and women.

 

Equal treatment is also prescribed by various European Community Directives, in particular Directive 79/7/EEC (19 December 1978) relating to social security provisions.  However, this allows various exceptions, mostly to the disadvantage of men, such as excluding unequal state pension ages from its remit.

 

Certain rights against sex discrimination are also provided by the European Convention (and now also the Human Rights Act 1998), in particular:  Article 5 - to liberty and security of person;  Article 6 - to a fair hearing of any civil or criminal charges, and presumption of innocence until proven guilty;  Article 8 – to respect for private and family life;  and Article 14 -  to non-discrimination on any ground in the enjoyment of such rights.

 

New Code of Practice
The Equal Opportunities Commission (EOC) was responsible for producing a Code of Practice on a new ‘Gender Equality Duty’ under the 2006 Act, also to apply from April 2007.  The Code is admissible as evidence in criminal or civil proceedings and can be taken into account if relevant when determining a case.  The Code allows public service provision to take into account “the different needs of men and women” (as well as their ‘differences’), a flexibility which, without strict control, can be exploited unfairly.  

 

This is already evident in the different (and unequal) support services at present available for male and female victims of domestic violence, these based on claimed or perceived ‘needs’, the particular ‘needs’ of women victims as a group being taken as ‘self-evident’, but not those of male victims.  In effect, the Code appears to change the emphasis in determining sex discrimination, since previously for individuals it was largely on a ‘like-with-like’ basis.  Now, it appears that ‘group needs’ could over-ride this comparison.

 

Types of sex discrimination
Sex discrimination takes two main forms, direct, in which one sex is specifically treated less or more favourably, and indirect, where there is no specific direction but the outcome is less favourable for one sex or the other, particularly if the disadvantaged sex is larger in number.

 

Both forms occur in both statutory and non-statutory measures.  Unequal state pension ages for men and women, and the associated basket of social security benefits which are pension age-related, is a statutory direct form.  Family law provisions which are gender neutral in terminology, but are likely to affect many more fathers less favourably than mothers, are a form of statutory indirect sex discrimination.  For instance, when determining child support payments by the non-resident parent (usually the father), the income of the resident parent (usually the mother) is not taken into account at all.

 

Non-statutory forms of sex discrimination include basing qualifying ages for  concessionary admission charges or other benefits on state pension age, eg. senior citizens, so that they are unequal for men and women;  and women-only sessions in public amenities, eg. swimming pools (which the EOC believes are unlawful, unless there is evidence of ‘severe embarrassment’ to justify them, or comparable single -sex facilities are also available to men, but has never legally challenged the practice).

 

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