HR professionals are used to looking out for the warning signs of potential claims of sex discrimination against women. But what about sex discrimination against men, as seen in the recent employment tribunal claim against Ford Motor Company over its policy on pay for men during paternity leave?
Here, we round up 10 examples of how employers’ actions against men can lead to sex discrimination claims in employment tribunals.
1. Sex discrimination in pay: men can “piggyback” on women’s equal pay claims
If a woman succeeds in an equal pay claim, comparing herself to a higher-paid male comparator, what are the rights of another man who is underpaid for doing similar work to the woman? In Hartlepool Borough Council v Llewellyn and other appeals, the EAT confirmed that a man can bring a “piggyback” claim, comparing himself with a female colleague doing like work, work rated as equivalent or work of equal value who has herself succeeded in an equal pay claim.
2. Maternity leave: artificially increased redundancy selection scores can lead to sex discrimination against men
In Eversheds Legal Services Ltd v de Belin, a law firm’s attempts to deal fairly with the redundancy selection scores of a woman on maternity leave backfired. The EAT held that a male employee suffered sex discrimination when he was selected for redundancy after his colleague on maternity leave was automatically given the highest possible score in respect of one of the selection criteria.
3. Flexible working requests: men may need to change their working patterns
HR professionals are used to dealing with flexible working requests made by women with young children. However, an assumption that a woman’s application should always be favoured over a man’s application can be sex discrimination, as Armstrong v DB Regio Tyne and Wear Ltd shows. The claimant was awarded £5,000 after his employer got a review of its flexible working arrangements wrong by assuming that women’s applications to retain their flexible working arrangements should be favoured over men’s.
FAQs: sex discrimination, occupational requirements and positive action
4. Positive discrimination in favour of women is unlawful
Employers need to be aware of the difference between positive action, which is lawful in limited circumstances under the Equality Act 2010, and positive discrimination, which is generally unlawful.
For example, an employer that feels that women are underrepresented in its workforce is quite entitled to encourage women to take advantage of opportunities for employment. This is permissible under the Equality Act 2010 and might include stating in a job ad that applications from women are particularly welcome.
However, it would be sex discrimination against men for an employer to set quotas to recruit or promote a specific number or proportion of women. In EFTA Surveillance Authority v Kingdom of Norway, a European court ruled that Norway acted contrary to European law by adopting a rule reserving a number of academic posts exclusively for women.
5. Assumptions that a particular type of work or duty within a job is unsuitable for a man
There are times when it is a genuine occupational requirement that an employee be female. An occupational requirement will apply under the Equality Act 2010 where, looking at the nature of the work, the employer shows that being of a particular sex is an occupational requirement, and the application of that requirement is a proportionate means of achieving a legitimate aim.
However, as Etam plc v Rowan demonstrates, the scope for this provision is limited. In that case, the EAT found that the employer had failed to show that a job as a sales assistant in a women’s clothing store had to be done by a woman because it could have organised the work so that a man did not have to undertake duties in the fitting room.
Similarly, in Brown v The Flagship Crèche Co Ltd, a fully qualified male nursery worker who left his job because of a rule barring male staff from taking girls to the toilet was found to have been subjected to unlawful sex discrimination.
6. Female-dominated workplaces can lead to sex discrimination against men
There are examples from case law of employers with mostly female staff discriminating against male employees or job applicants. In Taylor v Freemans Mail Order, a male manager in a predominantly female organisation was unlawfully selected for redundancy by a female manager who chose to retain women in preference to men because she thought that they would “better fit into the organisation”. In Flynn v The Governors of St Peters C of E Combined School, the failure to shortlist the only male applicant out of a substantial number of applicants for a post in a school where almost all the staff were female was found to be sex discrimination.
7. Men are protected from sexual harassment under the Equality Act 2010
Although sexual harassment is often thought of as a man making sexual advances towards a woman, male employees can be the victims of sex discrimination under the Equality Act’s harassment provisions.
In Basile v Royal College of General Practitioners and others, a man was found to have discriminated against another man by making lewd sexual comments and gestures. In Craddock v Fontoura t/a Countyclean, a male employee was harassed by a manager who made misguided attempts to “play Cupid” between the male employee and a new female employee.
8. Man could be discriminated against because of his marital status
“Marital status” is a protected characteristic under the Equality Act 2010. The wording of the Equality Act is wide enough to protect a male employee or job applicant who is discriminated against because of his marital status.
In Bloomberg Financial Markets v Cumandala, a male job applicant for a Madrid-based job argued unsuccessfully that his prospective employer assumed that he would “lack commitment” because his wife was unwilling to relocate from the UK and he would therefore need to commute weekly from London to Madrid.
9. Health: avoid requirements that could amount to sex discrimination against men
Employers should avoid requirements related to medical conditions that are more prevalent in one sex. For example, statistics have shown that colour-blindness is much more common in men than women. In Webster v Chief Constable of the Hertfordshire Constabulary, an employment tribunal ruled that a male police officer who was removed from operational duties because his colour vision did not meet the required standards was the victim of sex discrimination.
10. Enhanced pay during family-friendly leave for women but not men must be justified
In Shuter v Ford Motor Company Ltd, Ford successfully justified its policy of paying men on additional paternity leave the statutory minimum, while at the same time offering generous enhanced maternity pay to women on maternity leave.
Shared parental leave replaces additional paternity leave for parents of children expected to be born on or after 5 April 2015. This case is a good example for employers that enhance maternity pay but decide not to enhance shared parental pay. It details the justification that they should be prepared to provide if they are ever faced with a sex discrimination claim from a male employee.