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News Briefing - January 2022

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Sex Discrimination


Prior to April 2007, sex discrimination law in England and Wales was based on various items of primary legislation and statutory instruments, and a range of guidance documents. The primary legislation included the Equal Pay Act 1970 (EP 1970), the Sex Discrimination Act 1975 (SDA 1975), both as developed by case law and regulations, and the Equality Act 2006 (EA 2006) which came into force in April 2007. The SDA 1975 had been 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.


This UK law was supplemented in certain ways by European law, eg. various Directives (including the key Social Security Directive 79/7/EEC (19 December 1978)), by the European Convention on Human Rights, ratified by the UK Government in 1966, which prescribed that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law, and similarly by the International Covenant on Civil and Political Rights.


The subsequent Equality Act 2010 (EA 2010) repealed the Equal Pay Act 1970, the Sex Discrimination Act 1975, and the Sex Discrimination Act 1986.
The SDA 1975 had covered essentially discrimination in employment, education, and the provision of goods, facilities and services to the public. It largely excluded other areas including other legislation which conflicts. The EA 2006 introduced a ‘gender equality’ provision and set up a new Equality and Human Rights Commission (EHRC), in place of the three previous commissions on Equal Opportunities, Racial Equality, and Disability Rights. The new Act imposed 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.
The Human Rights Act 1998 prescribes certain rights pertaining to the liberty of a person, including a fair hearing of any civil or criminal charges, presumption of innocence until proven guilty, and non-discrimination on any ground in the enjoyment of such rights.


New Code of Practice
In the wake of the EA 2006, the EOC produced a Code of Practice for the new ‘Gender Equality Duty’ under the 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.


The EA 2010 introduced a new over-arching ‘Public Sector Equality Duty’, which can permit the unequal treatment of like persons similarly affected if they do not share the same protected characteristic. The Duty requires public authorities, in the exercise of their functions, and amongst other aims, to have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. Sub-section (6) of the Act indeed admits that compliance with the duties in this section may involve some persons being more favourably treated than others.


This is already evident in the different (and unequal) support services at present made available by public authorities for male and female victims of domestic violence, these based on claimed or perceived ‘needs’. It appears that the particular ‘needs’ of women victims as a group are taken as ‘self-evident’, but not those of male victims, who form as many as one third of all such victims. In effect, the new Duty 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’, or indeed ‘part of a group needs’, could over-ride this comparison.


There could be thus a potential conflict between some applications of this public sector equality duty and the basic right that “equality” means “equality between individuals” as prescribed in EA 2006 (Section 8(2)).


The EA 2010 also introduced (in Section 158) the concept of ‘positive ‘action’ to overcome or minimise disadvantage suffered by certain groups of persons sharing a protected characteristic. Much care will need to be taken by public authorities that any such positive action taken was essentially not the result of those who screamed loudest, but of rigorous appraisal.


According to Section 19(2)(d)) of the EA 2010, ”indirect discrimination could be held justifiable if it is a proportionate means of achieving a legitimate aim”.


By way of interest, Section 198 of the EA 2010 abolished a husband’s duty to maintain his wife.



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