This year marks 100 years since women have been able to practice at the Bar in England and Wales. In honour of this and International Women's Day 2019, we have been considering interesting aspects of discrimination law in relation to the protected characteristic of sex.
Motherhood and indirect discrimination
It is often taken as read that if a PCP puts those with children at a disadvantage this can be argued as sex discrimination. Women undertake the vast majority of childcare responsibilities. However, as times change, so do the arrangements within families as to who is looking after the kids. As we approach a more equal distribution of childcare within the home, the Tribunal is going to have to examine this accepted position. More Tribunals will be asking for evidence to support the contention that disadvantage connected to childcare affects women more than men. Indeed, the majority in the Court of Appeal rejected the argument that sex segregation in schools had a disproportionate effect on girls as it cannot be divorced from the cultural and historical discrimination faced by women rendering them the lower status sex (Al-Hijrah Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School  EWCA Civ 1426). Significantly, this argument was rejected due to lack of evidence. Gloster LJ’s dissenting Judgment is well worth a read!
Over the past decade there has been a huge upsurge in the number of equal pay claims, particularly multiple claimant cases. These were largely against public sector employers. Similar numbers of claims against private sector employers have not yet materialised, and may never do so without requirements for pay audits. Whilst the gender pay gap appears to be reducing year upon year, its continued existence suggests that there are many claims that could have been brought but have not.
Mums and redundancy
BEIS are currently consulting on whether to extend redundancy protections for mothers. One key recommendation in the consultation is whether to extend the period of protection under the Maternity and Parental Leave etc. Regulations 1999 by 6 months. The consultation gives two main reasons for for the proposed change: that the legislation is complex and that there is real evidence that mums are still being discriminated against by employers. The deadline for responses to the consultation is 5th April 2019.
Last year, the Government rejected calls for amendments to legislation regarding workplace requirements to wear heels. Instead the Equalities Office produced guidance on dress codes and uniforms (Dress Code Guidance PDF). The reason given for electing to produce guidance and no more was that the law is clear in principle but its application to individual cases is not straightforward.
The guidance explains that mandatory policies requiring women, and not men, to wear heels would "likely" constitute direct sex discrimination and may also be indirect sex discrimination. Indeed, the guidance is relatively clear, but it doesn’t address the key issue: that employers are failing to comply with sex discrimination legislation in this area (Petitions PDF).