Sex Discrimination
Background
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The subsequent Equality Act 2010 (EA 2010) repealed the Equal Pay Act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 husbands duty to maintain his wife.