Gender Equality

Gender equality is promoted by a number of UK and European laws. The following sections provide an overview of these laws.

The Equal Pay Act 1970
The Sex Discrimination Act 1975
The Equality Act 2006 - amending the Sex Discrimination Act 1975

The Equal Pay Act 1970 makes a provision for a woman or a man to claim equal pay with one or more actual comparators of the opposite sex (the claimant and the comparator must be in the 'same employment'). An equal pay claim may seek to obtain equality in relation to any contract term in respect of which the comparator enjoys an advantage.

Like the race equality duty and the disability equality duty, the gender equality duty also applies to students and pupils.

The Act introduces an 'equality clause' into every employment contract; protects employees, trainees, and some self-employed workers irrespective of age or length of service. With effect from 1 October 2005, the Act also covers the effect of maternity leave on a woman's pay. Under the Act, a woman can claim the same pay and contractual terms as a comparable man if she is doing like work; work rated as equivalent under a job evaluation scheme; or work of equal value. In a like work claim, the focus is on the work the woman and man do in practice. There may be 'like work' even if the man and woman work at different times or for different hours.

Employers are liable for discrimination by their workers that is carried out in the course of their employment, unless the employer takes such steps as are reasonably practicable to prevent the worker from discriminating; these measures can be used by the employer as a defence. The burden of proof is on the claimant to prove primary facts from which the Employment Tribunal (ET) can infer that she/he was treated in a discriminatory way. The onus then passes to the respondent to show a non-discriminatory reason for the treatment. A successful claim may result in an award of compensation as well as a declaration of rights. The Act does not apply to occupational pensions, but rights to equal treatment are contained in the Pensions Act 1995.

The Sex Discrimination Act 1975, which applies in England, Wales and Scotland, prohibits:
(a) direct and indirect discrimination on the ground of sex and marital status in employment, education and provision of goods and services and gender assignment in the field of employment;
(b) direct discrimination in employment (and other areas) on the ground of pregnancy or maternity leave in prescribed circumstances (which are recruitment, including arrangements made for offering employment; terms on which employment is offered; promotion; transfer; training; access to benefits, facilities or services; dismissal and any other detriment.
(c) direct discrimination in employment on the ground of gender reassignment in prescribed circumstances;
(d) sexual harassment and harassment on the ground of sex, marital status and gender reassignment in employment; and
(e) victimisation of workers and former workers.

The Act protects employees, other workers (including some self-employed workers and contract workers), job applicants, trainees and former workers. Unfortunately, the Act does not prohibit discrimination on the ground of sexual orientation. Discrimination on the grounds of sexual orientation in the employment field is unlawful under the Employment Equality (Sexual Orientation) Regulations 2003. The Act makes some exceptions, for example where there is a genuine occupational qualification for appointment to a particular post.

Direct discrimination is defined as the less favourable treatment of a woman than a man or a man than a woman because of their sex; a woman because she is pregnant; a woman because she is on maternity leave, though not necessarily in relation to pay and other benefits; a married person than a single person of the same sex because they are married or a person on the ground that they have undergone, are undergoing or intend to undergo gender reassignment.

Indirect discrimination occurs where you apply a practice, provision or criterion to an individual or individuals which has the effect of discriminating against one sex (usually women) or against married persons often because of childcare responsibilities, and cannot be justified by the needs of the job.

Harassment occurs where an individual or the harasser engages in an unwanted conduct, on the grounds of the victim’s sex, that has the purpose or effect of violating her/his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her/him. It also occurs where an individual engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect of violating the victim’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her/him. It also occurs where an individual, on the ground of her/his rejection of or submission to such unwanted conduct, the harasser treats her/him less favourably than he/she would treat her/him had she/he not rejected, or submitted to, the conduct.

The Sex Discrimination Act 1975, which applies in England, Wales and Scotland, prohibits: (a) direct and indirect discrimination on the ground of sex and marital status in employment, education and provision of goods and services and gender assignment in the field of employment (b) direct discrimination in employment (and other areas) on the ground of pregnancy or maternity leave in prescribed circumstances (which are recruitment, including arrangements made for offering employment; terms on which employment is offered; promotion; transfer; training; access to benefits, facilities or services; dismissal and any other detriment. (c) direct discrimination in employment on the ground of gender reassignment in prescribed circumstances (d) sexual harassment and harassment on the ground of sex, marital status and gender reassignment in employment (e) victimisation of workers and former workers.

The Equality Act 2006 amends the Sex Discrimination Act 1975 to place a 'general duty' on all public authorities to promote gender equality with effect from 6th April 2007:
'A public authority shall in carrying out its functions have due regard to the need:

(a) to eliminate unlawful discrimination and harassment, and
(b) to promote equality of opportunity between men and women. '

These are the core requirements of the gender equality duty. The gender equality duty, like the existing duties on race and disability equality, has the same spirit and intention behind it, requiring public authorities to take action to tackle discrimination, to prevent harassment, and to ensure that their work promotes equality in policy, service provision and employment.

he Equality Act 2006 also amends the Sex Discrimination Act 1975 and makes a provision for most of the major public authorities, including schools, colleges and universities, to carry out the following 'specific duties':

produce and publish an equality scheme identifying their gender equality goals and action to meet them, in consultation with employers and stakeholders
monitor and review progress
review the scheme every three years
develop, publish and regularly review an equal pay policy, including measures to address promotion, development and occupational segregation
conduct and publish gender impact assessments of all legislation and major policy developments, and publish their criteria for conducting such impact assessments.

Like the race equality duty and the disability equality duty, the gender equality duty also applies to students and pupils. In addition, it applies directly to certain private or voluntary sector authorities when they are carrying out public functions (the private functions of such bodies being excluded).

The Act also provides for a statutory code of practice which is admissible in evidence in any legal action under the Sex Discrimination Act 1975, the Equal Pay Act 1970 or Equality Act 2006 in criminal or civil proceedings before any court or tribunal . It can be enforced by judicial review. In addition, from 2007, the Commission for Equality and Human Rights (CEHR) will have the power to issue compliance notices in connection with a breach of the general duty and these are enforceable in the courts. The CEHR and the Equal Opportunities Commission (EOC) also have the power to issue compliance notices in respect of the specific duties.

There are other domestic and European laws that give men and women additional legal rights such as rights to maternity, paternity, adoption and parental leave and time off for dependants.

Help and support
For further advice on this issue, ATL members can speak to their school rep, their branch secretary or their regional official. They can also call the London (020 7930 6441), Cardiff (029 2046 5000) or Belfast office (02890 327 990) or email info@atl.org.uk.

For out of hours enquiries, call the out of office hours helpline on 020 7782 1612 (Monday-Friday, 5-8pm during term time). Don’t forget that ATL also offers a Crisis Line for members who have suffered assaults or trauma either at work or in their private lives (08705 234 838).

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Resources

Gender in education, Pdf document, 748 KB