How-to guide: How to avoid sex discrimination in the workplace (UK)

Introduction

This how-to guide provides information and guidance to in-house counsel, private practice lawyers and human resources professionals working in England, Wales and Scotland (GB) in relation to sex discrimination. It offers a practical, step-by-step overview of the key legal duties of employers relating to sex discrimination. It also provides guidance on how to prevent workplace sex discrimination, respond to complaints and manage risks.

This guide covers:

Definition of sex discrimination
Types of sex discrimination
Employer’s duty to prevent workplace sex discrimination
Handling sex discrimination complaints
Practical steps to prevent sex discrimination

This guide can be used in conjunction with How-to guide: Overview of workplace discrimination and harassment law and Quick view: Protected characteristics under the Equality Act 2010.

Section 1 – Definition of sex discrimination

Sex discrimination occurs when an individual is treated less favourably because of their sex. The primary legislation governing sex discrimination is the Equality Act 2010 (EqA 2010), which consolidates previous anti-discrimination laws and identifies sex as one of the nine protected characteristics. The EqA 2010 defines a man as a ‘male of any age’ and a woman as a ‘female of any age’. The Supreme Court has recently determined in For Women Scotland v Scottish Ministers [2025] UKSC16 that the terms ‘man’, ‘woman’ and ‘sex’ in the EqA 2010 refer to biological sex only. The EHRC has produced guidance in An interim update on the practical implications of the UK Supreme Court judgment.

The EqA 2010 also protects individuals from discrimination by perception and association. Discrimination by perception occurs when someone is treated less favourably because others believe they have a particular protected characteristic, even if they do not. Discrimination by association refers to unfavourable treatment due to an individual's connection with someone who has a protected characteristic.

Section 2 – Types of sex discrimination

There are various types of sex discrimination under the EqA 2010, some are more obvious than others.

2.1 Direct discrimination

Direct sex discrimination occurs when an individual is treated less favourably explicitly because of their sex. Direct discrimination is unlawful under section 13 EqA 2010, and sex is identified as a protected characteristic under section 11 EqA 2010. In professional settings, direct discrimination can manifest in various ways, such as disparities in hiring practices, promotions, pay and workplace treatment.

2.1.1 Examples of direct sex discrimination

Promotion denial

An employer overlooks a qualified female employee for a promotion, assuming she would be unwilling to travel due to family commitments and instead promotes a less qualified male colleague (see for instance Renowden v ONS 1600622/2017).

Hiring bias

An organisation rejects a female applicant for a sales position under the belief that male employees possess better technical skills and credibility with customers. Asking interview questions such as ‘why do you want to work’ can amount to discriminatory behaviour.

Dress code enforcement

A female employee is required to wear a revealing uniform, while male employees are permitted to wear standard attire. When the female employee refuses, she faces disciplinary action.

IVF treatment

A woman undergoing IVF treatment is dismissed or penalised for taking time off to attend appointments related to her fertility treatment, while men in comparable situations (eg, taking time off for medical procedures) are not treated similarly. Employment tribunals have recognised that penalising a woman for IVF-related absences may amount to direct sex discrimination, particularly where the employer’s treatment is based on assumptions about a woman’s fertility or future pregnancy (see for example Ginger v Department for Work and Pensions 3401940/2015).

2.2 Indirect discrimination

Indirect sex discrimination occurs when an employer implements a policy, practice or criterion that applies to all employees but disproportionately disadvantages individuals of a particular sex, without sufficient justification. Indirect discrimination is defined at section 19 EqA 2010.

2.2.1 Examples of indirect sex discrimination

Full-time work requirement

An organisation enforces a policy that only full-time employees are eligible for promotions. This practice may disadvantage women, who are statistically more likely to work part-time due to caring responsibilities, resulting in indirect sex discrimination (eg, see Thompson v Scancrown Limited 2205199/2013).

Inflexible work hours

An employer mandates a strict 8am start time for all staff. This requirement could disproportionately affect women, who are statistically more likely to require flexibility in working hours due to caring responsibilities (eg, Shackleton Garden Centre Ltd v Lowe, UKEAT/0161/10).

Height requirements

An organisation sets a minimum height requirement for a role where height is not a genuine occupational necessity. Given that women, on average, are shorter than men, such a criterion could disproportionately exclude female candidates, amounting to indirect discrimination.

2.3 Harassment

The EqA 2010 includes a number of forms of harassment related to sex at section 26, which are set out below.

2.3.1 Harassment related to sex

This form of harassment involves unwanted conduct related to an individual’s sex that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Importantly, the behaviour does not need to be of a sexual nature.

Derogatory comments

Consistently making negative remarks about women’s capabilities in leadership roles can constitute harassment related to sex. See for instance Grant v Buffery & Co Ltd 3312208/2023, where a trainee was told she was ‘skiving’ while looking after children.

Persistent gender-based stereotyping

Repeatedly making comments such as ‘women are too emotional to manage teams’ or ‘men don’t belong in caring professions like nursing’ (eg, Hinds v Mitie Ltd 3322885/2021 where over £350,000 was awarded).

Undermining behaviour towards a particular sex

Regularly interrupting or speaking over female colleagues in meetings, while male colleagues are given more time to speak.

Mocking parental leave or caring responsibilities

Teasing a male employee for taking paternity leave or making jokes about a female employee’s reliability after returning from maternity leave. In Reeves v Goldman Sachs International 2209024/2022 a male employee won a sex discrimination claim after taking paternity leave.

Exclusion based on sex

A male employee is excluded from informal team events because the rest of the team is female, with comments like ‘you wouldn’t enjoy a girls’ night anyway’.

Criticism based on gendered expectations

Telling a woman in a senior role that she is ‘too aggressive’ when she asserts herself, despite similar behaviour being accepted or praised in male colleagues.

Deliberate misgendering or gender-based language use

Consistently referring to a female manager as ‘the girl from HR’ rather than by her name or title, or referring to women as ‘birds’ (Chung v Whisky 1901 Ltd 2205139/2023).

Workplace nicknames based on gender traits

Calling a male employee ‘princess’ when he expresses concern about workload or working conditions.

2.3.2 Sexual harassment

Sexual harassment is defined as unwanted conduct of a sexual nature that has the same purpose or effect as harassment related to sex (ie, violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment). This includes actions such as unwelcome sexual advances, inappropriate touching or sharing sexually explicit materials.

Requests for dates

A supervisor repeatedly asking an employee on dates despite clear refusals.

Unwanted sexual comments or jokes

Repeated remarks about a colleague’s appearance or sexual innuendo, even if framed as ‘banter’.

Inappropriate touching or physical contact

Uninvited hugs, touching someone’s lower back, brushing against someone unnecessarily or sitting too close (eg, Fricker v Gartner UK Limited 3303546/2019).

Sexually suggestive messages or emails

Sending explicit jokes, memes or flirtatious messages via email, text or internal messaging platforms.

Sexual gestures or body language

Making lewd gestures, licking lips suggestively or staring inappropriately at someone’s body.

Displaying or sharing pornographic or sexual material

Having sexually explicit images in the workplace, including screensavers or magazines, or sharing links or videos (see Donaldson v Southern Electric Power Distribution PLC 8000700/2024, where an employee’s dismissal for displaying such material was found to be fair).

Commenting on sexual history or preferences

Asking intrusive questions about someone’s sex life or making assumptions about their sexuality.

Mocking or sexualised comments about clothing

Remarks like ‘you look like you’re asking for attention’ or commenting on someone’s outfit (eg, see Bratt v JGQC Solicitors Limited 26013889/2022, where behaviour including stating the claimant looked like a contestant from the TV programme Love Island was found to be sexual harassment).

2.3.3 Submission or rejection harassment

Submission or rejection harassment is a particularly coercive form of sexual harassment where an individual is subjected to unwanted sexual conduct and feels pressured to submit in order to obtain or retain employment benefits — or avoid negative consequences. Or, alternatively, they reject the sexual conduct.

What distinguishes submission harassment is the conditional element. The individual may perceive (or be led to believe) that accepting or tolerating the behaviour will result in advantages — such as promotion, favourable shifts or continued employment. Conversely, rejecting the conduct may lead to detriment, such as demotion, job loss or exclusion from opportunities.

With this form of harassment the power imbalance often silences victims. They may comply outwardly while feeling deeply uncomfortable, fearing the consequences of resistance. Crucially, under the law, submission is not consent. The focus is on whether the conduct was unwanted and whether the environment became hostile or demeaning as a result.

Examples of submission harassment include:

a manager implying that a junior employee must go on a date to be considered for a permanent contract;
threatening to withhold a reference unless sexual advances are entertained;
offering better performance ratings in return for sexual favours.

Even if the employee ultimately goes along with the conduct, this does not negate the harassment. The courts and tribunals recognise that employees may feel compelled to comply due to fear of losing their job or suffering professionally.

2.4 Victimisation

Victimisation (section 27 EqA 2010) occurs when an individual is subjected to a detriment because they have performed or are believed to have performed a ‘protected act’. A protected act includes:

bringing proceedings under the EqA 2010;
giving evidence or information in connection with such proceedings;
doing any other thing for the purposes of or in connection with the EqA 2010. This is a broad category and could include helping a fellow employee draft a grievance letter, challenging a policy on grounds it is discriminatory, or refusing to take part in a discriminatory practice; and
making an allegation (whether express or not) that another person has contravened the EqA 2010.

2.4.1 Examples of victimisation

Labelling as a troublemaker

An employee who files a discrimination complaint is subsequently labelled a troublemaker by management, leading to isolation from colleagues and exclusion from meetings.

Denial of training opportunities

After supporting a colleague’s harassment claim, an employee is denied access to professional development courses that are otherwise available to others in similar roles.

Unjustified negative performance reviews

An employee who gave evidence in a discrimination case receives an unjustifiably negative performance appraisal, impacting their career progression.

2.5 Equal pay

Equal pay means that men and women must receive the same pay and contractual terms for doing equal work. This right is set out in Chapter 3 EqA 2010, which implies an ‘equality clause’ into contracts of employment to ensure parity.

The law applies when two employees of the opposite sex are doing:

like work – the same or broadly similar tasks;
work rated as equivalent – through a job evaluation scheme; or
work of equal value – requiring similar levels of effort, skill or decision-making.

If there is a difference in pay or benefits, the employer must show it is due to a material factor unrelated to sex (eg, location, experience). These factors must be objectively justified.

Employees can compare themselves to a real comparator of the opposite sex working in the same employment. Claims can be brought in the employment tribunal and back pay of up to six years (five in Scotland) may be awarded.

Equal pay applies to all contractual pay and benefits, including bonuses, pensions, sick pay and holiday entitlements.

Section 3 – Employers’ duty to prevent workplace sex discrimination

3.1 Preventing sex discrimination

There are a number of steps employers can take to prevent sex discrimination issues arising.

3.1.1 Understanding prohibited conduct

Employers should ensure they have a good understanding of the different forms of discrimination – as set out above – including less obvious discriminatory conduct such as indirect discrimination.

3.1.2 Implementing anti-discrimination and harassment policies

One of the essential steps to prevent discrimination is to develop comprehensive anti-discrimination policies that:

define unacceptable behaviours by clearly outlining what constitutes discrimination, harassment and victimisation;
provide clear guidelines on how employees can report discriminatory behaviour through a grievance procedure and/or confidential helpline; and
specify the potential disciplinary actions for those found engaging in prohibited conduct.

Employers should also take the following steps to ensure that the policies are effective:

Provide training sessions to educate employees, ensure all staff understand what constitutes discrimination and how to prevent it, and to empower management with the skills to identify and address discriminatory behaviours promptly.
Promote an inclusive workplace culture.
Regularly monitor and assess workplace practices and policies to identify potential areas of improvement.
Encourage employees to provide feedback and input on the workplace environment and any concerns related to discrimination.
Address complaints promptly and fairly.

For information about how to address complaints, see How-to guide: How to investigate workplace harassment complaints.

3.2 Employer liability for workplace sex discrimination

Vicarious liability is a legal principle under which employers can be held responsible for the discriminatory actions of their employees that occur in the course of their employment. This means that if an employee discriminates against another employee, the employer could be taken to an employment tribunal and held liable for this discrimination, even if they were not directly involved in or aware of the discriminatory behaviour (section 109(1) EqA). For further information, see section 6 of How-to guide: Overview of workplace discrimination and harassment law.

3.3 The employer’s duty to take reasonable steps to prevent sexual harassment in the workplace

Since October 2024, employers are required to take reasonable steps to prevent sexual harassment in the workplace. Employers must take reasonable steps to prevent sexual harassment of their employees by:

their own staff; and
third parties, such as clients and customers.

For further information see How-to guide: How to comply with the employers’ duty to take reasonable steps to prevent sexual harassment in the workplace for further information.

3.4 Legal consequences of failing to prevent discrimination

Employers who neglect their duty to prevent discrimination may face:

employment tribunal claims, resulting in:
- declarations: tribunals will declare that an employee’s rights have been broken and they have been discriminated against;
- financial compensation: tribunals may award compensation to affected employees, which can be substantial and is uncapped;
- recommendations: in discrimination claims the tribunal can recommend that the employer takes certain specified steps to improve their diversity awareness (eg, managers undergo mandatory training); and
reputational damage: public knowledge of discriminatory practices can harm an organisation’s reputation, affecting client trust and employee morale.

3.5 Positive action under the EqA 2010

Chapter 2 EqA 2010 permits employers to take positive action to help disadvantaged or underrepresented groups – including on the basis of sex – provided the steps taken are proportionate and evidence-based.

Positive action is lawful when it aims to:

address disadvantage;
meet different needs; and
encourage participation in circumstances of underrepresentation.

Examples include targeted outreach, mentoring schemes or encouraging applications from particular groups. In recruitment, where two candidates are ‘as qualified as each other’, it is lawful to appoint a candidate from an underrepresented group, provided the action is proportionate and not part of a blanket policy.

It is vital that employers document the justification for any positive action taken and keep it under regular review to ensure ongoing compliance, as positive action necessarily involves discrimination. For example, a male candidate who was as equally qualified as a female candidate was treated less favourably on grounds of sex and could present a claim.

3.6 Public sector equality duty

The public sector equality duty (PSED), established under section 149 EqA 2010 mandates that public authorities in England and Wales must, in the execution of their functions, have due regard to the need to:

eliminate discrimination, harassment, victimisation and any other conduct prohibited by the EqA 2010;
advance equality of opportunity between individuals who share a protected characteristic and those who do not; and
foster good relations between individuals who share a protected characteristic and those who do not.

This duty applies to public authorities and organisations performing public functions, including local councils, educational institutions, healthcare providers and law enforcement agencies. The PSED is designed to integrate considerations of equality into the day-to-day operations of public bodies, promoting fair treatment and equitable outcomes for all individuals, regardless of protected characteristics such as sex, race, disability or age.

Section 4 – Handling sex discrimination complaints

When an employee raises a complaint about sex discrimination, employers must act promptly, fairly and in accordance with established procedures. Effective complaint handling not only reduces legal risk but also reinforces an organisation’s commitment to equality. See How-to guide: How to investigate workplace harassment complaints for further information. While this resource is focused on harassment complaints, the steps and guidance outlined in the resource are applicable to all types of discrimination investigations.

Section 5 – Practical steps to prevent sex discrimination

Effectively addressing sex discrimination in the workplace requires a proactive approach that encompasses the identification, collection and analysis of evidence. Employers who are concerned about issues of sex discrimination in their workplace, or who want to be proactive in avoiding such issues arising, should carry out a review of the evidence detailed below. Collecting and analysing this evidence should be conducted with strict adherence to confidentiality and data protection laws.

Type of evidence	Details	Importance
Employment contracts and offer letters	These documents outline the terms and conditions of employment, including job roles, responsibilities and remuneration.	Reviewing these can help identify disparities in job offers and contractual terms between male and female employees, highlighting potential instances of direct discrimination and indirect discriminatory practices.
Pay slips and compensation records	Records of salaries, bonuses and other financial benefits provided to employees.	Analysing these records can uncover pay disparities between genders for similar roles, which may constitute unequal pay claims.
Performance appraisals and promotion records	Documentation of employee evaluations, feedback and records of promotions or demotions.	These can reveal patterns where one gender consistently receives lower performance ratings or fewer promotion opportunities without objective justification, indicating potential indirect discrimination.
Training and development records	Logs of training sessions attended, professional development opportunities provided and qualifications obtained.	Disparities in access to training between male and female employees can suggest discriminatory practices in professional development as well as providing a basis on what an employer could consider advancing the statutory defence to discrimination that they took all reasonable steps to prevent discrimination.
Grievance and disciplinary records	Files detailing complaints raised by employees and any disciplinary actions taken.	A higher incidence of grievances or disciplinary actions against one gender may indicate a hostile work environment or biased enforcement of policies. A pattern of complaints about sex discrimination or harassment is likely to indicate an issue within the workplace.
Workplace policies and handbooks	Official documents outlining company policies, codes of conduct and procedures.	Ensuring that policies are gender-neutral and consistently applied helps prevent systemic discrimination.
Recruitment materials and interview records	Job advertisements, interview notes and selection criteria used during the hiring process.	These materials can reveal biases in recruitment practices, such as gendered language in job ads or inconsistent questioning during interviews.
Exit interviews and turnover data	Records of reasons provided by employees for leaving the organisation.	Analysing this data can identify trends where one gender leaves the company at higher rates, possibly due to discriminatory practices or an unsupportive work environment.