Citizens Advice Bureau

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Equal Opportunities Commission Wales

• Citizens Advice Bureau
• Kerry Wakefield
• Helpline Officer

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What is the role of the Equal Opportunities
Commission?

• Section 11.2 Sex Discrimination Act 1975 (SDA)
• To work towards the elimination of discrimination
• To promote equality of opportunity between women
  and men generally and
• To keep under review the working of the Act and
  the Equal Pay Act

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Not covered by the EOC

• Disability Discrimination Disability Rights
  Commission www.drc-gb.org
• Race Discrimination Commission for Racial
  Equality www.cre.gov.uk
• Discrimination on grounds of sexual
  orientation/religion/age introduction of new
  legislation
• Commission for Equality and Human Rights (CEHR)

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What do we do - ACE

• Agenda Setting
• Publish research, e.g. Snakes and Ladders
• Equal Pay Campaign
• Investigation into Pregnancy Discrimination
• Capacity Building
• Equality Exchange
• Establishing relationships with CABx, Trade
  Unions
• Enforcement
• Formal assistance in very few cases
• Helpline
• Belief Investigations and seeking injunction for
  persistent discrimination

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Types of Enquiry
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Sex Discrimination Act 1975

• Protects against discrimination on grounds of
  gender protects transgender (only in employment)
  and married persons against discrimination
• Employment (recruitment, promotion, training,
  dismissal, sexual harassment)
• Education
• Goods, facilities, services
• Direct and indirect sex discrimination
• Applies regardless of length of service
• Time Limit for bringing a claim within 3 months
  of the act which is complained of, unless lodged
  a grievance under the SGP

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Direct discrimination

• Section 1 (1)
• A person discriminates against a woman if
• 1 (1) (a) On the grounds of her sex he treats her
  less favourably than he treats or would treat a
  man

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Indirect discrimination

• A person indirectly discriminates against a woman
  if he
• applies to her a provision criterion or practice
  which he applies or would apply equally to a man,
  but
• Which puts or would her at a particular
  disadvantage when compared with a man
• Which puts her at that disadvantage
• Which he cannot show to be a proportionate means
  of achieving a legitimate aim

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Pregnancy and Maternity The Basics

• As of 5th October 2005 Pregnancy discrimination
  is specifically defined in the SDA as
• A person discriminates against a woman if
• on the grounds of the woman's pregnancy, the
  person treats her less favourably than he would
  treat her had she not become pregnant
• unique position - does not need a comparator
• Enhanced rights in some circumstances e.g. in
  redundancy situations
• Protected period from beginning of pregnancy
  to end of maternity leave

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• Sex Discrimination/Maternity Rights
• Right not to be treated less favourably on
  grounds of pregnancy/maternity leave -
  recruitment, promotion, pay rise, training
• Health and safety risk assessment
• Pregnant employee is entitled to 26 weeks
  Ordinary Maternity Leave this right applies
  regardless of length of service.
• Employee is entitled to Statutory Maternity Pay
  if she has 26 weeks continuous service completed
  by 15th week before expected week of childbirth.

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• If she has 26 weeks service completed by the 14th
  week before the expected week of childbirth she
  would also be entitled to 26 weeks Additional
  Maternity leave (unpaid).
• All employees are entitled to time off for
  ante-natal care, paid at the employees normal
  rate of pay.
• Woman is entitled to same terms and conditions
  during ordinary maternity leave except for
  remuneration (e.g. keeping her company car or
  mobile phone)
• Right to return to the same job on same terms and
  conditions after OML and suitable alternative
  after AML

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Dismissal Automatically Unfair

• Dismissal will also be automatically unfair if
  for reasons connected with pregnancy, childbirth,
  taking of maternity leave (s99 ERA 1996).
• Even if the reason for dismissal is
  redundancy the selection criteria must not
  include pregnancy or pregnancy related factors
  (e.g. taking into account pregnancy related
  sickness)

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• Harassment
• From 5th October 2005 the SDA has been amended to
  include a definition of harassment and sexual
  harassment
• S4A Sex Discrimination Act
• A person subjects a woman to harassment if
• On the ground of her sex, he engages in unwanted
  conduct that has the purpose or effect
• i) of violating her dignity, or
• ii) of creating an intimidating, hostile,
  degrading, humiliating or offensive environment
  for her.

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Sexual Harassment

• S4 A (b)
• A person subjects a woman to sexual harassment if
  
• He engages in any form of unwanted verbal,
  non-verbal or physical conduct of a sexual nature
  that has the purpose or effect
• Of violating her dignity or
• Of creating an intimidating, hostile, degrading,
  humiliating or offensive environment for her.

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Less favourable treatment on ground of rejection
of, or submission to, harassment/sexual harassment

• S4A (1) (c)
• A person subjects a woman to harassment if on
  the ground of her rejection of, or submission to,
  unwanted harassment or sexual harassment he
  treats her less favourably than he would treat
  her had she not rejected, or submitted to, the
  conduct

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Liability

• Employer Liability
• An employer is liable for his/her own acts of
  harassment, or for sex discrimination in the way
  he handles complaints of harassment
• The SDA also makes employers vicariously liable
  for the acts of his/her employees
• Third party liability e.g. students harassing a
  teacher
• Employee Liability
• Employees are personally liable for harassment,
  if harassment is proven

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Victimisation

• If an employer treats any person less favourably
  than others because that person is bringing
  proceedings/giving evidence/taking action/making
  allegations in relation to the SDA 1975, the
  employer is guilty of discrimination by way of
  victimisation.

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Family friendly working

• The right to request family friendly working if
• He has parental responsibility for child under
  6 or disabled child under 18.
• Has had 26 weeks service.
• E.g.. job sharing, working from home, part-time
  working.
• If granted, is a permanent change to contract of
  employment.
• Only one request per year
• Employer must give reasons for refusal

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Indirect Discrimination

• There is a provision, criterion or practice
• YES
• Which applies to women and men equally
• YES
• which puts or would put women at a particular
  disadvantage when compared with men (or vice
  versa)
• YES
• which puts her at that disadvantage
• YES
• which he cannot show to be a proportionate means
  of achieving a legitimate aim.
• YESIndirect sex discrimination

In order to keep your job you must work
9-5pm This applied to all employees This
provision or criterion puts women at a particular
disadvantage when compared with men, because
women still have prime childcare
responsibilities It is to her disadvantage
because she cannot find childcare or she wants to
spend more time with her children (detriment in
light of HRA) Is it a proportionate means of
achieving a legitimate aim? Indirect
Discrimination
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Justification

• Bilka-Kaufhaus GmbH v Webber Von Hartz
• The employer must show that the provision,
  criterion or practice
• can be objectively justified on grounds other
  than sex, and
• corresponds to a real need on the part of the
  employer, and
• is appropriate with a view to meeting that need,
  and
• is necessary to meet that need.

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Justification (2)

• In applying the test in Bilka the ET must also
• Evaluate the justification put forward in the
  employer.
• Consider whether there was another way to achieve
  the employer's aim.
• Balance the employer's need against the
  discriminatory impact.
• Examine whether the employer has taken into
  account the detriment to the applicant

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Remedies under SDA

• Payment of Compensation
• - Damages are payable for loss e.g. of earnings
• - Aim is to put applicant in position he/she
  would have been in had discrimination not
  occurred
• - award for injury to feelings
• - award for personal injury e.g. psychiatric
  damage
• - No upper limit
• ET can recommend that employer take action to
  remedy discrimination

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Equal Pay Act 1970

• Makes it unlawful to pay an employee less than an
• employee of the opposite sex, if both are doing
  work
• which is
• - The same or broadly similar
• - Rated as equivalent under a job evaluation
  scheme
• - The work is different but is of equal value
  when assessed as equal in terms of e.g.
  responsibilities, mental / physical demands,
  decision making
• - Broad definition of pay includes salary,
  bonuses, commission, provision of benefits in
  kind, such as a company car.

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Equal Pay Act cont.

• Employer can use Material Factor Defence
• difference in pay is due to genuine material
  factor which is not difference in sex
• E.g. Economic factors affecting efficient running
  of employers business
• Applies regardless of length of service
• Claims may be brought at any time during
  employment or within 6 months of leaving
  employment

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Case Study 1Jane was appointed to a temporary
position as a Care Assistant in a nursing home to
cover maternity leave. Three weeks into the job
she discovers that she is 4 weeks pregnant and
she informs her employer. Her employer has not
conducted a health and safety risk assessment and
has told her that she must continue to help to
lift patients. Two weeks later she is told that
she is being dismissed because she cannot fulfill
the contract to cover maternity leave as she will
be absent on maternity leave herself.Outline
the issues in this case.
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Case study 2

• Lisa was embarrassed by her manager who would
  encourage office sexual banter, had pin ups of
  naked women and would download sexually
  explicit/obscene images from the Internet which
  he then discussed. Although not directed at her,
  they did make her feel uncomfortable. Lisa has
  looked in the Staff Handbook but cannot find a
  policy on dealing with harassment in the
  workplace. However, when she reported harassment
  it was decided that it would be best for her to
  be moved. Her new manager is a friend of her
  previous manager and he has started to find fault
  with her work and is refusing to allow her time
  off for Doctor appointments.
• What can she do?

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Case Study 3Melanie and John both work as
operators in a call centre. Melanie has a 7 year
old daughter and as a result of recently
separating from her husband wants to reduce her
hours in work so that she can spend more time
with her daughter. Her line manager tells her
its out of the question as soon as she makes the
request.John has a 6 month old daughter and want
to share the childcare responsibility with his
wife who is due to return to work after maternity
leave. He makes a similar request and this is
also refused immediately.Outline possible
claims for both Melanie and John
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Remedies under the EqPA

• Remedies back pay for up to 6 years worth of
  pay
• Equal Pay Questionnaire
• Concealment cases in concealment cases pay can
  be backdated to date of discrimination (I.e.
  where employer has deliberately withheld
  information which may have led applicant to
  believe s/he had a case under the EqPA.

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Help for CABx

• Employers Grievance Procedure
• Section 74 Questionnaire and Equal Pay
  Questionnaire
• Request for Further Particulars
• ACAS Conciliation Officer 029 2076 2636
• Request under Data Protection Act
• Order for Discovery and Inspection

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• Precedents, case summaries, outline of tribunal
  procedure on EOCs Website for Legal Advisors
• www.eoc-law.org.uk
• EOC Helpline- support for first tier advisers
• 0845 601 5901
• NB Check clients home insurance policy!

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Further Assistance

• Employment Tribunal Skills and Discrimination Law
  Course,
• University of Wales Cardiff
• Free
• September 2006
• 1 day a month for 6 months
• Covers race, religion and belief, sex, race,
  disability, sexual orientation, age,
  discrimination, ETs and general employment
  issues
• CAB Bulletin
• Quarterly
• Email
• Legal updates, case law, useful links etc.

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Contacting us-Kerry Wakefield Helpline 0845
601 5901Equal Opportunities Commission
WalesWindsor HouseWindsor LaneCardiffCF10
3GEkerry.wakefield_at_eoc.org.ukwww.eoc-law.org.uk
www.eoc.org.uk