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Mind The (Gender) Gap: Sex Discrimination In The UK

Nigel Farage, the outspoken leader of the UK Independence Party, sparked some interesting debate this month after he defended the comments made by MEP Godfrey Bloom that no “self-respecting small businessman" would employ a "woman of child-bearing age". During a radio interview with LBC 97.3, Mr Farage said that he understood Mr Bloom’s comments, having been a businessman himself before entering into politics, and that if he were running a small business that had to choose between employing a man and a woman (assuming they had equal qualifications) then the fact that the female applicant may get pregnant and incur the cost of maternity leave would be a factor in his decision (which, as the show’s host pointed out, is unlawful).

Mr Farage’s comments come at a time when sex discrimination issues have come to the fore. The Chartered Management Institute (CMI) announced the results of a study last week which indicated that the gender pay gap was widening as a result of bonuses. Last year, male managers received average bonuses which were more than double the bonuses of their female counterparts. The CMI said that was on top of basic salaries, which were almost 25% higher for men.

A separate study by law firm Slater & Gordon also indicated that more than one in four mothers feel they have been discriminated against at work whilst pregnant or after returning to their job from maternity leave, although most did not make a formal complaint about the discrimination. The majority of these women said they would advise female workers to wait until the last possible moment to tell their bosses they are expecting. Under current legislation, pregnant employees must tell their employer that they are pregnant no later than the end of the fifteenth week before the expected week of childbirth.  

There have also been a number of claims in the Employment Tribunals in recent months, including a female solicitor who was told that she was not to get into a relationship so she could spend more time networking, a female banker who felt forced from her job at an investment house due to the male employees’ sexism, and a female live-in housekeeper who was told by her employer not to get pregnant and who was required to discuss her contraception and family planning issues with her employer.

Given that it has been 43 years since the Equal Pay Act 1970, which prohibited any less favourable treatment between men and women in terms of pay and conditions of employment, and 38 years since the Sex Discrimination Act 1975, this rise in discrimination claims and the existence of such a large gender gap is a huge disappointment to equality groups, and in their view a damning indictment of the modern workplace.

According to the Ministry of Justice’s Tribunal Statistics published in June this year, the number of sex discrimination claims brought in the Employment Tribunals in 2012/13 was 74% higher than in the previous year (although it was not too dissimilar to the number of claims brought in the three previous years). Although many of these claims were settled on the grounds of cost or were successfully defended by the employer, the fact remains that sex discrimination is still rife in the UK, especially at senior levels.

Mr Farage’s view that employing a woman runs the risk of taking on the expense of maternity pay and the cost of recruiting a temporary replacement will at least soon be rather outdated. A new system of "shared paternity leave" applicable to employees and agency workers will be introduced in 2015. This will allow parents to share maternity leave, allowing fathers to effectively take up to 50 weeks’ leave following the mother’s two weeks’ compulsory maternity leave. It will therefore not always be women who take leave following the birth of a child, and given that men can have children at any age there would be little chance of knowing when a male employee may end up having a baby and taking 50 weeks’ leave.

Under the Equality Act 2010 (and previously under the Sex Discrimination Act 1975), employers are not permitted to treat an employee or a job applicant less favourably than they would treat others because of that person’s gender. This would constitute direct discrimination, which cannot be objectively justified in the same way as indirect discrimination can and as such the issue of cost would not be a defence. Businesses of any size should therefore anticipate the costs of maternity benefits for their staff when budgeting rather than trying to get around the discrimination legislation in order to cut costs. In the long run, this could result in a claim by the person who has been discriminated against which could be costlier for the company than the saving made by choosing a male candidate over a female candidate.

Rather like voters selecting their MP, employers should choose their staff based on their ability to perform the job. And perhaps it is that message which Mr Farage should focus on.

 

This article was first published as part of our Employment Law Update - August 2013. You can subscribe to receive these monthly updates by email. To join our mailing list, please email updates@solts.co.uk.