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Sex discrimination

The Sex Discrimination (Northern Ireland) Order 1976 (the SDO), as amended by the Sex Discrimination (Northern Ireland) Order 1988, the Sex discrimination (Indirect Discrimination & Burden of Proof) Regulations (Northern Ireland) 2001 and the Employment Equality (Sex Discrimination) Regulations (Northern Ireland ) 2005, makes it unlawful to discriminate against an individual on the grounds of his or her sex in the fields of employment; training and related matters; education; the disposal and management of premises; and the provision of goods, facilities and services. The SDO also makes it unlawful to discriminate against married persons in employment.

The Gender Reassignment Regulations (Northern Ireland) 1999 amends the SDO to make it unlawful to discriminate on grounds of gender reassignment (sex change) in employment and training.

On 6 April 2008, the Sex Discrimination (Amendment of Legislation) Regulations 2008 came into operation in Northern Ireland, and introduced protection from direct discrimination on grounds of gender reassignment in the provision of goods, facilities, services or premises. The Commission has produced a Fact Sheet explaining the changes in detail.

On 6 April 2008, the Sex Discrimination (Amendment) Regulations (NI) 2008 came into operation in Northern Ireland, and introduced a number of important changes to the Sex Discrimination (NI) Order 1976. As explained in detail in the Commission´s Fact Sheet, the Regulations:

removed the need for a comparator in complaints of discrimination on the grounds of pregnancy or maternity leave;
amended the definition of harassment, in order to prohibit unwanted conduct that is ‘related to a woman’s sex or that of another person’s’;
made it clear that employers must take reasonably practicable steps to protect employees from harassment by third parties where such harassment is known to have occurred on at least 2 other occasions;
narrowed the exception relating to terms and conditions during maternity leave.

On 31 March 2011, the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2011 came into operation in Northern Ireland amending the definition of indirect sex discrimination. The Regulations make clear that the provisions cover both persons who are put at a disadvantage by the discriminatory provision and those who would be put at such a disadvantage.

What is sex discrimination?
Employment
Exceptions
Scope
Education
Goods, Facilities and Services
Land and Premises
Other Unlawful Acts
General Exceptions
Enforcement of SDO Employment Complaints
Enforcement of Other SDO Complaints

What is sex discrimination?

Discrimination is not simply unfairness. To be discriminated against means to be treated less favourably than others. Sex discrimination is less favourable treatment on the grounds of sex or marital status. This does not include sexual orientation. Separate legislation which deals with discrimination on grounds of sexual orientation was introduced in December 2003.

The Sex Discrimination (Northern Ireland) Order 1976 outlines five types of discrimination:

1. Direct discrimination is where someone is treated less favourably than others in the same or similar position and the grounds for that treatment is sex or marital status.

Example
A female candidate at a job interview is asked about her domestic and childcare arrangements while a male candidate is not. Subsequently, the male is appointed even though the woman is clearly the better applicant but the employer had based its decision on discriminatory assumptions about the woman´s ability to carry out the job.

2. Indirect discrimination in employment exists where a provision, criterion or practice is applied or would apply equally to men and women but:

which puts or would put women at a particular disadvantage when compared with men;
which puts her at that disadvantage; and
which he cannot show to be a proportionate means of achieving a legitimate aim.

Example
A shop places an advertisement for a counter assistant seeking someone who is at least 5 feet 10 inches tall. This may amount to unlawful indirect sex discrimination as men are generally taller than women.

The same definition of indirect discrimination applies to complaints in non-employment cases, relating to the provision of goods, facilities, services and premises (apart from certain excluded maters).

3. Victimisation means treating somone less favourably than others because they:

have brought proceedings under the sex discrimination or equal pay legislation;
have given evidence or information in connection with proceedings brought under the sex discrimination or equal pay legislation;
have done anything under the sex discrimination or equal pay legislation;
have alleged that someone has committed an act which is unlawful under the sex discrimination or equal pay legislation; or
intend to do any of the above.

Example
An employer refuses to offer an employee overtime because s/he was a witness at a tribunal hearing for a colleague claiming sex discrimination against this employer.

4. Pregnancy/Maternity discrimination, or discrimination on the grounds of pregnancy and maternity leave in employment and vocational training, the provision of goods, facilities, services and premises (apart from certain excluded matters), is also outlawed by the SDO.

Example
It is unlawful sex discrimination to dismiss a female employee becuase she is pregnant or to single her out for redundancy or to take account of pregnancy-related sick leave to justify her dismissal.

There is no need for a comparator (either male or female) when claiming sex discrimination on the grounds of pregnancy or maternity leave.

The SDO also explicitly outlaws discrimination on the grounds of pregnancy and maternity leave in the field of goods, facilities, services and premises (apart from certain excluded matters). For further information see the ECNI Fact Sheet on the Sex Discrimination (Amendment of Legislation) Regulations 2008.

5. Sex harassment is also identified as unlawful. The SDO prohibits harassment related to a person´s sex in the fields of employment and vocational training, (including institutions of further and higher education), the provision of goods, facilities, services and premises (unless excluded). Harassment is defined as unwanted conduct which has the purpose or effect of violating a person´s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for a person. Less favourable treatment on the grounds of rejection of or submission to conduct of this kind is also defined as harassment.

The Sex Discrimination (Amendment of Legislation) Regulations 2008 apply the definitions of sex harassment, sexual harassment and gender-reassignment harassment to the provisions relating to goods, facilities, services and premises (apart from certain excluded matters). For further information see the ECNI Fact Sheet.

In addition sexual harassment is unlawful under the SDO.

Examples
Sexual harassment can include:

physical conduct, which includes unwated physical contact ranging from unnecessary touching, patting or pinching up to assault;
verbal conduct, which may include unwelcome sexual advances, propositions or pressure for sexual activity, offensive flirtations, innuendos or lewd remarks;
non-verbal conduct, which includes the display of pornographic or sexually suggestive pictures or written materials, leering, whistling or making sexually suggestive gestures.

Complaints of sexual harassment may be made against the employer as well as the harasser. Employers are liable for any sexual harassment committed by their employees in the course of their employment, even if they did not know about the harassment or would not have approved of it had they known about it. Employers may successfully defend a sexual harassment case if they can show that they took such steps as were reasonably practicable to prevent the harassment happening.

Employers are also liable for the repeated harassment of their employees by third parties, unless they take reasonably practical steps to protect them.

For further information, see the ECNI´s Fact Sheet.

Employment

The SDO outlaws discrimination by all employers, regardless of the size of the workforce in relation to opportunities for promotion, transfer or training, or to any other benefits and in relation to dismissal. It also outlaws discrimination in the recruitment of new employees, and in the terms of an offer of employment. The SDO also applies to:

employment agencies;
sub-contractors;
trade unions and employer organisations;
bodies which confer qualifications;
vocational training providers;
those with the statutory power to select employees for others;
those who have the power to select office holders;
office holders;
barristers; and
partnerships.

In addition, in certain circumstances, former employees will have rights under SDO. For example, it would be unlawful for an employer to refuse to provide a work reference for a former employee on the grounds of sex.

Exceptions

The SDO provides that sex discrimination by an employer in recruitment, promotion, transfer and training is not unlawful where a person´s sex is a genuine occupational qualification (GOQ) for a job. For example, a woman or a man might be needed for a specific purpose such as a modelling or acting role, or where the job is a single sex hospital or prison. Ministers of religion are exempt where, for example, a requirement is applied which limits employment to one sex so as to comply with the doctrines of the religion.

Scope

The SDO covers sex discrimination in employment in Northern Ireland if the employee does his/her work wholly or partly in Northern Ireland, or does his/her work wholly outside NI and:

the employer has a place of business at an establishment in NI;
the work is for the purposes of the business carried on at the establishment; and
the employee is ordinarily resident in NI at the time when s/he applies for or is offered the employment or at any time during the course of the employment.

Education

Schools, colleges and other educational establishments cannot discriminate on grounds of sex. It is unlawful for the body responsible for an educational establishment to discriminate:

as regards terms of admission to the establishment;
by refusing or deliberately omitting to accept an application for admission;
in the way it affords a pupil whom it has admitted to the establishment access to any benefits, facilities of services, or by refusing or deliberately omitting to afford such access; or
by excluding such a pupil from the establishment or treating such a pupil unfavourably in any other way.

The SDO places a general duty on bodies responsible for educational establishments in the public sector to ensure that facilities are provided without sex discrimination.

An exception is made for admissions to single-sex schools and admissions to single sex boarding accommodation in co-educational schools. Single-sex teaching groups in co-educational schools are also lawful, provided the provision to boys and girls is equal.

Goods, facilities and services

The SDO outlaws discrimination on the grounds of sex in the provision of goods, facilities and services which are available to the public or a section of the public. This includes refusal of a service or the provision of a lower standard of service. Discrimination of this kind is unlawful whether the service provided is paid for or not. Examples include:

access to and use of any place which members of the public are permitted to enter;
accommodation in a hotel, boarding house or other similar establishment;
facilities by way of banking or insurance or for grants, loans, credit or finance;
facilities for education;
facilities for entertainment, recreation or refreshment;
facilities for transport or travel; and
the services of any profession or trade, or any local or other public authority.

The SDO applies to discrimination by those who provide goods, facilities and services to the public and does not apply where the transaction is of a purely private nature, for example, entertainment or refreshment provided to members of a genuinely private club.

The same definition of direct sex discrimination applies to the field of goods, facilities and services as well as employment and vocational training. The definition of indirect sex discrimination which applies to employment and vocational training is also the same as that which applies in the field of goods, facilities, services and premises (apart certain excluded matters). For further information, see the ECNI Fact Sheet on the Sex Discrimination (Amendment of legislation) Regulations 2008.

Indirect sex discrimination in the field of education exists where a provision, criterion or practice is applied or would apply equally to men and women but:

disadvantages a considerably larger proportion of the members of one sex, and
cannot be justified by objective factors unrelated to sex, and
is to his/her detriment.

Land and premises

It is unlawful for anyone selling or managing property or premises to discriminate against a person on the grounds of their sex. For example it would be unlawful for a landlord to refuse to rent to or to evict someone because they are of a particular gender. It is also unlawful for a landlord to harass a tenant or prospective tenant on the grounds of their sex. However, there are exceptions in relation to small dwellings where the landlord occupies the premises.

Other unlawful acts

The SDO also makes it unlawful to apply discriminatory practices, publish discriminatory advertisements, instruct or put pressure on a person to do anything contrary to the SDO by discriminating in employment or other fields, or to knowingly aid another person to carry out such acts.

Employers are also liable for acts of discrimination committed by their employees in the course of their employment whether or not the acts were done with the employer´s knowledge or approval, unless the employer can show that it took such steps as were reasonably practicable to prevent the discrimination occurring.

General exceptions

There are exceptions to the general principle of sex discrimination and the SDO exempts:

benefits conferred by charities on members of a specific sex;
acts relating to participation as a competitor in certain sporting events which are confined to competitors of one sex;
acts relating to the treatment of a person with regard to an annuity, life assurance policies, accident insurance policies or similar matter involving the assessment of risk;
access to women only or men only facilities for training for work, in the specific circumstances described;
allowing a minimum membership of one sex in elective bodies such as trade unions;
affording or facilitating access to benefits, facilities or services in certain circumstances;
acts done to protect women in compliance with the requirement of an existing statutory provision, for example in relation to pregnancy or maternity;
acts done to safeguard national security, or to protect public safety or public order;
acts which relate to the provision or disposal of accommodation or premises of small dwellings;
any special provision for women only or men only in the constitution, organisation or administration of a political party or anything done to give effect to such special provisions;
allowing voluntary bodies to restrict its membership, and the benefits, facilities and services it provides to members, to one sex;
acts relating to the provision of communal accommodation.

Enforcement of SDO employment complaints

Complaints of discrimination in employment under the Sex Discrimination Order must be made within three months of the act complained of. Complaints are dealt with by an industrial tribunal.

Where a tribunal decides in favour of the complainant, it may award such of the following remedies as it considers just and equitable:

an order declaring the rights of the parties;
an order requiring the respondent to pay compensation to the complainant;
a recommendation that the respondent takes remedial action to obviate or reduce discrimination.

In industrial tribunal proceedings, each party will normally pay its own costs although the tribunal may award costs against either party in certain circumstances, for example if a case is conducted in an unreasonable way by acting vexatiously, abusively or disruptively or if a complainant brings a case which is misconceived. The maximum costs the tribunal can award against a party are £10,000. In practice awards of costs are much lower than this and the tribunal will take into account the claimant´s ability to pay.

There is a right of appeal on a point of law to the Court of Appeal against a decision of an industrial tribunal.

Enforcement of other SDO complaints

Claims of unlawful discrimination in education, premises and in the provision of goods, facilities and services must be made within six months of the date of the act complained of.

Where a complaint relates to certain public sector education there is a requirement to give two months notice to the Department of Education and in these circumstances, the time limit is extended from six to eight months.

Complaints are dealt with in the county court. Where a county court finds in favour of the complainant, it may award any of the following remedies:

an order declaring the rights of the parties;
an injunction or order;
damages, including compensation for injury to feelings.

Where the court finds against a party, that party will normally pay their own costs and the costs of the other party.

There is a right of appeal to the Court of Appeal against a decision of a county court. If leave is granted, a further appeal can be made to the House of Lords.