Gender offenders

It is often throwaway remarks and informal habitual practices that cause the
most problems in sex discrimination cases. 
Diana Reid gives examples of how to avoid trouble

Discrimination in employment      

Rachel applies for a job with Double Glazing International as
marketing manager. She has a successful interview with Mr Glass, the managing
director, though is puzzled by his good-humoured questions and jokes regarding
her husband’s work commitments, whether he ‘minds’ her working, and what her
long-term career plans are. Glass tells Rachel she will receive a decision the
following week.

Over the weekend, Glass sees Rachel buying a toy for her new niece. Rachel
waves at him and jokes with her husband that Glass will now assume she will
need maternity leave soon. The following week Rachel receives a rejection
letter. She calls Glass to ask why she has been rejected, but he does not call
her back.

Two weeks later Glass receives a letter from Rachel’s solicitor alleging sex
discrimination in the failure to offer her the job on the basis of her sex
and/or marital status. Glass is furious as he thinks he is entitled to hire who
he wants.

Diana Reid comments: Discrimination in the recruitment process is
unlawful under section 6 of the Sex Discrimination Act 1975. Rachel has a
potential claim in the employment tribunal against Double Glazing International
for its failure to offer her employment on the basis of her sex. She could also
allege she was discriminated against because she is married, contrary to
section 3 of the SDA. Glass could be named personally as an additional
respondent to her claim by virtue of section 41(1) of the SDA.

Glass’ mistake was to introduce an apparently discriminatory line of
questioning regarding Rachel’s personal life into the interview. The employment
tribunal can draw an adverse inference from these facts and conclude that her
sex or marital status was the reason behind his decision, in the absence of any
adequate explanation from Glass as to why exactly she was not offered the job.

Under an amendment to the SDA in October 2001, the burden of proof in a sex
discrimination claim is on the employer so that where the employee – or here,
the potential employee – shows facts from which the tribunal can infer
discrimination (here, the line of questioning), it is for the employer to show
it did not discriminate.

Vague, unsubstantiated justifications for his decision may not convince the
tribunal and it will be important to produce contemporaneous written records to
show the real reason for not employing Rachel. If Glass cannot demonstrate that
the person he appointed had more appropriate qualifications and experience, he
may be landed with a significant compensation bill.

In future he should avoid asking job applicants (male or female) of their
domestic situations or gender-related medical questions, for example,
"have you taken any time off due to ‘female’ ailments?". He should
ask his HR manager to ensure all managers responsible for interviewing
potential employees are aware of this and that they ask the same questions
where possible of all candidates for a particular role to ensure consistency.

The Equal Opportunities Commission gives guidance on questioning at

Sexual harassment

Caroline works at Finance Ltd and reports to Mr Dragon. She has had a
successful career with the company and has got on well with Dragon. However, in
recent months his attitude towards her has changed (she does not know why) and although
her colleagues note no obvious clashes between them, she feels there is a great
deal of tension.

She believes he is directing personal remarks at her (although they have
always had a jokey relationship) and this worsens when he starts to make flattering
remarks about her appearance and tells risqué jokes in front of clients,
seemingly to embarrass her. She complains informally to the CEO who tells her
that she should be flattered, not have a sense of humour failure, and that she
has a great future with the company.

She writes formally to the CEO setting out her claims and he passes the
letter to the company’s solicitors. They respond by strongly denying the
allegations and referring to the company’s equal opportunity policy, which is
issued to all managers and new employees when they join. The tension carries on
until Caroline resigns, claiming sex discrimination and constructive unfair

DR comments: There is currently no legal definition of sexual
harassment, although a Europe-wide legal definition is expected in 2005.

Sexual harassment is a type of sex discrimination and is defined by the EOC
as unwelcome physical, verbal or non-verbal conduct of a sexual nature. It is
not confined to physical harassment and can be demeaning or flattering comments
about a person’s appearance; questions/jokes about a person’s sex life; name
calling with demeaning terminology which is gender specific; or any other
conduct of a sexual nature which creates an intimidating, hostile or
humiliating work environment. Harassment can be a one-off serious act or a
series of less serious acts.

A key factor in harassment cases is whether the employer properly
investigates the allegations. The CEO’s mistake was to dismiss Caroline’s
complaints out of hand without properly investigating what happened by
interviewing her, Dragon and other relevant witnesses.

It is not relevant whether the CEO or anyone else found the comments
offensive – the test is whether Caroline found them offensive or upsetting. In
addition, the company’s solicitors were ill advised to issue an immediate
aggressive denial of her complaints, thereby suggesting any subsequent
investigation would have a foregone conclusion.

A calm, measured reaction will present the employer in a better light if a
claim is made and show the allegation was taken seriously.

Section 41(3) of the SDA allows the defence that the employer took such
steps as were reasonably practicable to avoid the harassment complained of. The
main plank in this defence will be having an effective equal opportunities
policy which is actually implemented and not only brought out when a claim is

This will include training in equal opportunities for employees with
supervisory/management responsibilities with updates where necessary.

Sex discrimination and bonuses

Naomi works for Big Bank. Since having children two years ago she has
worked a four-day week and tries to avoid late evening meetings. She catches up
on work when necessary at home. She received a high rating in her last
appraisal and met her targets.

It’s bonus time. The annual bonus is discretionary and there is no written
policy on it. Typically the decision is reached by looking at the employee’s
individual performance.

Naomi’s manager, Ms Suit, e-mails some colleagues for feedback on Naomi’s
performance. She receives two replies which she takes as criticism of Naomi’s
attitude and commitment and decides to award her a bonus of 30 per cent of
salary. Her team colleagues (male and female) who perform similar work receive
bonuses of between 75 and 100 per cent.

Naomi brings a claim for sex discrimination in the employment tribunal and
asks for disclosure of the e-mails leading to the bonus decision. The first
e-mail says a lower bonus could be justified as a quid pro quo for Naomi’s
flexible hours, as she isn’t likely to be able to find such an arrangement
elsewhere. The second questions her motivation for working (for example is it
to increase the family income or because she enjoys her career?) and says this
should affect the amount she is awarded.

Though Suit says she did not rely solely on these e-mails, she cannot point
to any other factors except her own impression of Naomi’s performance. Suit
says her appraisal was probably too generous.

DR comments: Naomi has potential claims under the SDA and/or the Part
Time Workers (Prevention of Less Favourable Treatment) Regulations 2001. She
could couch her claim as a direct sex discrimination claim on the basis that,
in reaching the bonus decision, assumptions were made that hers was the second
income in the household and that she’d be unlikely to leave as it would be
difficult to find a similar part-time position elsewhere.

She could also argue that her treatment constituted indirect sex
discrimination on the basis that her childcare commitments and the fact she
couldn’t show the same flexibility or ability to work late as male employees
were a factor in the bonus decision and that this affects women

As she completed her work to a high standard within deadlines and achieved
her targets, the requirement to work outside office hours could not be
objectively justified.

Her claim under the Part Time Workers Regulations would be that she was
treated less favourably because of her part-time status and that treatment is
not objectively justified.

The bank’s mistake here was not to have a clear, written policy documenting
objective criteria for the bonus decision and, where possible, avoiding vague
subjective judgements on attributes such as ‘commitment’ and ‘flexibility’.

The bonus decision should be linked to the annual appraisal where individual
performance is a criterion and only the published criteria should be taken into
account. Bonus proposals, debates and the reasons for bonus levels should be
documented. In addition, if possible, bonus decisions should not be taken
solely by the manager with day-to-day responsibility for the team to avoid

Managers responsible for setting bonus levels should have some training in
equal opportunities. It may also be prudent to monitor the gender and race span
in awards so discrepancies can be investigated.

The e-mails are all disclosable under the tribunal rules so even informal or
throwaway comments can be subject to a disclosure obligation and come back to
haunt the writer.

In addition, Naomi has the right under the Data Protection Act 1998 to ask
for access to her personnel records and could do this before issuing tribunal

Diana Reid is a solicitor in the employment department at Herbert Smith

Comments are closed.