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Sex discrimination runs deep

19 February 18

Employment briefing: the news regarding the President's Club charity event, coinciding with the Fawcett Society's Sex Discrimination Law Review, emphasises the deep seated issues the report raises

by Amanda Jones

The long anticipated Sex Discrimination Law Review has now been published by the Fawcett Society and, as if to emphasise some of its recommendations, was immediately followed by reports of the events at the President’s Club dinner. 

The review itself highlights that violence against women and girls is endemic in the UK, and calls on the Government to make significant changes to the law in order to address these issues. The report is the conclusion of a review into sex discrimination laws in the UK amid concerns that Brexit might impact on the protections which have been built up over many years in this area. It also considers the effectiveness of current laws. Sam Smethers, the CEO of the Fawcett Society, stated that “What we see is a deeply misogynistic culture where harassment and abuse are endemic and normalised coupled with a legal system that lets women down because in many cases it doesn’t provide access to justice.”

That persistent pay gap

While the report recognises that in the centenary year after suffrage was introduced for some women, much has been achieved, it also expresses the frustration that in some areas progress has been slow. In particular, the report highlights the fact that the gender pay gap remains stubborn and that access to justice is limited. The issue of violence against women and girls is also a particular concern.

It has long been recognised that the provisions relating to equal pay, introduced over 40 years ago, have had limited impact on ensuring equal pay for men and women, and that the gender pay gap remains significant. In this regard, the report recommends the reintroduction of questionnaires to gain evidence to prove claims of equal pay. It also recommends amending the Freedom of Information Act to include pay in the private sector in order to allow information to be obtained. It is widely accepted that only an increase in transparency of pay structures is likely to eradicate inequality in this area. Equally, claims of equal pay are usually extremely difficult to bring given the length of time they take and that there is no ability to bring class actions. The review recommends changes in these areas too.

Harassment: protection needed

The reported conduct of those who attended the President’s Club charity dinner at the Dorchester Hotel might well add credence to the call in the report to amend the law on third party harassment. The law in this area has changed a number of times over recent years. At one point, employers were liable for discriminatory conduct by third parties which amounted to harassment if they could have prevented the conduct. Case law changed that so that liability would only arise if there was a discriminatory reason for the employer’s failure to prevent the harassment. The Equality Act then sought to clarify the position, by introducing provisions whereby an employer would be liable for the actions of a third party if a member of staff had been subjected to harassment on three separate occasions. The legislation was extremely problematic and ultimately those protections were abolished in 2013. Since then it has been difficult for a worker to hold their employer to account for the actions of a third party. 

This issue is often of particular relevance for those in the hospitality sector. The report calls on the Government to reintroduce the provisions making an employer liable for harassment, but that liability should arise after only one prior incident of harassment. 

The report details recent research findings where 52% of women reported having been subject to harassment at work, but 80% of those had not complained. The fallout from the President’s Club event brings into sharp focus the issues of harassment of women at work, and while it may not of itself result in the Government acting on the recommendations of the Fawcett report in this regard, it certainly gives credence to the requirement that some protection be given to women working in this sector. 

While it is accepted that there is already protection for those claiming that a dress code is discriminatory, it is suggested that a code of practice should be introduced which offers guidelines on what is and is not appropriate in this area. 

Finally, changes are recommended to maternity, paternity and family friendly rights, in relation to time limits in which a claim can be brought, rates and entitlement to pay, and a review of parental leave policy predicated on the presumption that parents take equal responsibility for childcare.  

Amanda Jones, partner, Dentons UKMEA LLP

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