STATUTES
| DOI | http://doi.org/10.1111/j.1468-2230.1976.tb01466.x |
| Date | 01 July 1976 |
| Published date | 01 July 1976 |
STATUTES
WOMEN
IN
EMPLOYMENT-THE NEW
LEGISLATION
THE
facts about sex discrimination in employment now hardly need
restating1:
if
it were not for the
normdity
of this sort of prejudice
these facts would surely have given rise to legal measures long before
now. In International Women’s Year, however, the legislature produced
a
women’s rights
“
package
”
which
is
the subject-matter of this note
and which goes some way towards redressing the balance. The four
statutes which make it up are the Sex Discrimination Act
1975,
the
Equal Pay Act
1970:
the Employment Protection Act
1975
and the
Social Security Pensions Act
1975.‘
1.
Equal Opportunity
Here the Sex Discrimination Act is the key statute since
as
a general
principle it covers all the non-contractual aspects of employment
:
the
Equal Fay Act regulates the contract terms themselves.
The
definition
of
discrimination
Discrimination against men or women on ground of sex can be
either direct or indirect and since a defence of justification is allowed
for the latter but not the former, it is vital to know how to distinguish
the
two.
Direct discrimination occurs when
a
women
is
treated less
favourably than a man
“
on
grounds of her sex.”
‘I
and indirect when,
even though the same “condition or requirement” is or would be
applied to both sexes, it is (a) of such a nature that considerably fewer
women than
men
can comply with it;
(b)
not justifiable irrespective of
sex; and
(c)
to the woman’s detriment because she cannot comply
with it?
It
is
quite clear that if indirect discrimination were not
prohibited, direct discriminaton would by itself leave many women as
badly
off
as they were before the Act was passed.
It
is equally clear
that in some
cases
indirect discrimination should
be
legally justifiable
:
1
If they do, reference should be made
to
the Department of Employment’s
Manpower Papers nos.
9-12,
and to Audrey Hunt’s
O.P.C.S.
survey,
Management
Affifitdes
and
Pracflces
lowards
Women
at
Work
(H.M.S.O.,
1975).
2
Both effective December
29, 1975,
but with some exceptions-see below, note
56.
The S.D.A. is
the
model for the new Race Relations Bill introduced in February
1976
-and the Bill in tuh is to make some minor amendments to the S.D.A.
3
The maternity leave provisions and protection against dismissal for pregnnnq
cnme into
form
on
June
1,
1976.
The maternity pay provisions are not effective until
April
1W7.
4
In
general effective April
1978,
though some of its provisions
will
be brought in
earlier than
this.
5
Thc S.D.A.
also
covers areas other than employment (education, housing, the
provision
of
goods, services and facilities): these will not be considered here except
in
so
far as they nffect employment. The distinction between contract terms and other
rnnttcrs is hot always clear cut: some contract terms not covered by the Eq.P.A.
will
be covercd by the
S.D.A.-see
below,
p:
446.
*
S.D.A.,
s.
1
(1)
(b).
a
The statute works both ways, by
virtue
of
s.
2
(1).
7
S.D.A.,
s.
1 (1)
(a).
432
July
19761
STATUTES
433
for instance, a woman whose application for
a
job requiring an
engineering qualification is rejected in favour
of
a man’s should not
be able to complain of sex discrimination when the real reason for
the man’s success is that he possesses an engineering degree and she
does not. The fact that few women have engineering degrees is
undoubtedly the result of sex discrimination, but it is neither fair nor
useful to punish the employer for this by making him hire unqualified
staff.8 But there are other cases in which the answer is not
so
obvious.
Take for
instance
the working mother’s need for a certain amount of
flexibility about hours
of
work, time
off,
holidays and the like, which
could well be inconsistent with a requirement of the employer applied
irrespective of sex. It would also be one which considerably fewer
women than men could meet, and which is
to
the woman’s detriment
because she cannot meet it-but not much stretching of the imagination
is required to foresee that an industrial tribunal might well find
discrimination justifiable
in
such a case. The same reasoning can be
applied to requirements about availability for travel, training courses.
and the like, for women with home responsibilities. Yet these are
requirements which will keep many women out of responsible jobs
and which
could
in some
cases
be modified by the employer. Every-
thing here turns on the meaning to be attributed to the word
“
justifiable.”
Furthermore, there is a daculty in any event in drawing a clear
line between direct and indirect discrimination, and thus in determining
when the plea of justification can
be
used. The characteristics and
qualities which each sex may be said to possess range from the purely
biological (say, the ability to have babies) to the purely social (say,
the tendency to wear certain clothes, adopt certain hairstyles and
so
on). These qualities (and all in between) may be classed either as part
of
“
sex
”
(and therefore the subject matter of direct discrimination),
or
as the result of social mores, habit, cconomic necessity (and
therefore the subject-matter of indirect discrimination). But this
classification, on the face of it simple, and apparently assumed to be
self-evident by the statute, is in fact
so
difficult as
to
be almost
impossible.
It
could be argued that sex means nothing more than the
possession of male or female reproductive organs: if this
is
so then
the plea of justification will be available in the great majority of cases.
A
woman who alleges she has been discriminated against simply
because she is not a man may
be
told that the real reason relates to
her hair style, preference for skirts and high heels, domestic commit-
ments and the like-all of which could be said to be justifiable in
certain contexts.
A
further difficulty is that some of the
‘‘
secondary
”
characteristics attributed
to
either sex may themselves be, not fact,
but the product of prejudice. What is one to make for instance of an
assumption that more women than men are incapable of logical
9
These
are problems
of
discriminntion in training and education opportunities-see
below, p.
438.
VOL.
39
(4)
3
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