BIRDSFeathered Friends

Sex Discrimination Related Victimization in the Workplace

SEX EQUALITY: SEX DISCRIMINATION RELATED VICTIMIZATION IN EMPLOYMENT

Sex equality victimization in employment need not involve sexual advances, gender prejudice -it is itself unlawful.

Employees who suffer sex equality victimization without sex discrimination or sexual harassment also have rights ~this while mostly female victimization is different than sexual discrimination or illegal sexual advances, but equally unlawful under equal rights and sex equality laws.

Sex equality victimization is the specific kind of unlawful employer retaliation which is specifically to do with but independent of sex discrimination or sexual harassment -it has its own different rules, regulations, legal procedures.

Compensation awardable for sex equality victimization in workplaces relates to equal rights and can be limitless if ‘injury to feelings’ is caused by sex equality victimization in employment -if about sexual prejudice in the workplace.

Sex equality victimization has its own special legal definition and is called so because it is gender victimization based on sex equality laws and often arises in employment when one in good faith enquires about, e.g., maternity or paternity leave entitlement and in sexism is subjected to victimization, or if one, mistaken though one may be, honestly believing oneself subjected to unlawful discrimination or unwelcome sexual advances, complains of sexual harassment and suffers victimization (or, if a man or girl or work woman upon being suspected that would, could, or might, complain of a sex equality matter [e.g. illegal prejudice because of marital status or sexual orientation] is caused a detriment) -not necessarily a sexist detriment unlawful under gender equality laws or in terms of a woman’s rights or of women’s equality but any kind of detriment that is because of a sexual discrimination matter.

Simply put, victimization is this, in employment law (under the Sex Discrimination Act 1975 ss. 4(1)&(2))..: If the employer knew, or suspected… that the employee alleged, or intended to allege… that the employer, or another employee, did something wrong under the Sex Discrimination or a related Act… and… if the employer can not show the allegation to be, both, untrue and not in good faith… and… if it can be seen that as a result of that… by the standards of reasonable employers… one was treated less favourably than any other employee was, or would be, treated… that is unlawful victimisation.

This unlawful victimization under the sex equality legislation applies, just as in the case of unwanted sex advances to a man or women by opposite or same sex or sexual prejudice or bullying, also in the provision goods or services and sex victimization is actionable then too; but, sex prejudice or sexual abuse based victimization is mostly a feminine issue and mostly sex victimization takes place in employment against girls or women employees -although not only female employees but also male persons may complain of sex equality victimization.

In sexual victimization complaints arising out of workplace harassment or gender prejudice covered by a sex equality law, if victimization is or involves dismissal, the qualifying period (the requirement that one must have been employed for at least a year to be entitled to complain under employment legislation -unless for breach of contract) does not apply -an equal rights demand is a protected act and one may complain of gender victimization regardless of one’s length of employment.

Such victimization is covered also by the Code of Practice of ACAS (Advisory Conciliation and Arbitration Service) who arbitrate also on sex equality and victimization claims.

The EOC (Equal Opportunities Commission) must promote equal rights policies -including sexism toward women workers and working women’s rights and victimization of woman employees ~it requires employers to have a written EOP (Equal Opportunities policy) document on equality principles -including on sex equality and covering unlawful prejudice victimization of work women.

Sex equality legislation requires the EOC also to provide advice to and assistance in respect of complaints to Industrial Tribunals of victimisation (this, unless assistance is applied for legal representation, often is in the form of advice and drawing up of the sex equality Questionnaire ~answers to this can be used in evidence that there had been e.g. an illegal discrimination complaint -it entitles inference about the alleged victimization to be drawn from failure to respond or if answers are vague or ambiguous).

When complaining of sex equality related victimization, it is important to remember the following:-

A. Complaints of equal rights victimization to Employment Tribunals must be made within three months of the date on which the sex equality victimisation took place, or of when the sex equality victimization came to one’s notice -this does not include that day, but does include weekends and most public holidays and day of receipt of the victimization complaint by the Employment Tribunal local to the employer ~the last day ends at midnight.

B. Same applies about the sex victimization Questionnaire -but if served after the victimization claim is lodged it is 21 days ~even if the employer is legally represented, if a limited company, it should be served on it’s Company Secretary at its registered address.

C. If a postal victimization claim is received out of time, one must show that at least 2 days were allowed for postal delivery -or the victimization claim may be rejected.

In complaints of sex-equality victimization it is wise to bear in mind precedent which may affect victimization claims:-

1. Victimization has to be in respect of the employment relationship; a sexual prejudice or sexual abuse based victimization complaint does not qualify if it is by the employer but not in the course of or in respect of the employment itself -i.e. if the employer in an unrelated meeting or dealing e.g. at a wedding reception ridicules the employee that is not covered by employment rights: Walters -v- Metropolitan Police Commissioner, 1997, CA.

2. In sex equality victimization complaints, the onus of proof is on the complainant ~although it may easily move to employer: Humphreys -v- Board of St. Georges 1978, EAT -the employer must justify subjecting to a proven detriment considered victimization: National Vulcan Eng. Ins. -v- Wade, 1977 EAT, and a broad approach is relevant in victimization cases: Copper Pass -v- Lawton 1976, EAT.

3. Employment legislation requires reference at the first instance to ACAS with a view to possible settlement without resort to an Employment Tribunal, and so it is also in gender prejudice or sex harassment based victimization ~also, if victimization was dismissal, the victim must ask the employer to re-consider and respond within 28 days -a general principle in employment right being that additional facts must be considered by the employer: Wells -v- Derwent Plastics Ltd. 1978 EAT, any new facts even after dismissal: Christie -v- Rolls Royce Ltd. 1971 EAT, if the employer erred it must be corrected: Sandhu v Dept Science & Education 1973 EAT, especially if there had been no indication of dismissal: Williamson -v- Alcan (UK) Ltd. 1978 EAT.

4. If sex equality victimization is short of dismissal comparisons with others may be necessary -e.g. if one’s workload has been increased or promotion has been denied by victimization ~comparison is the basis of most equal rights cases, e.g., London Regional Transport 1998 CA -custom & practice can also be considered Wallace -v- E. J. Fry Ltd. 1979 NIRC.

5. In victimization complaints it matters not whether the employer was consciously or unconsciously victimizing nor what was the employer’s motive or intention -if there has been less favourable treatment on grounds of gender that suffices: Reg. -v- Birmingham CC ex-parte EOC 1989, HL, and, James -v- Eastleigh BC 1990, HL.

6. Victimization cases may involve a Pre-Hearing Review to decide whether there is a reasonable prospect of success -this is different than a full merits hearing of the victimization complaint, and the onus here to discharge is not proving the sex equality victimization case, but that the employer’s stated reason is capable of not being the reason, and that the reason is capable of being victimization, qualifying the sex equality victimization complaint for a full merits hearing.

7. If sex equality victimization is dismissal and it proceeds to a full hearing, once the sex equality victimization complainant gives evidence, it is then for the employer to counter that evidence and normally the Employment Tribunals then have regard to the reason stated by the employer in determining if the sex equality victimization was the reason or the main reason for the dismissal.

There is no automatic entitlement to written reasons for the decisions of Employment Tribunals and appeals can not be made without written reasons -one must specifically ask for written reasons within 14 days of the victimization hearing ~appeals in sex equality victimization cases lie to the EAT (Employment Appeal Tribunal).

Laws change -the above are brief guidelines.

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