What is discrimination?
This is where a woman (or man) is treated less favourably than a person of the opposite sex in comparable circumstances is, or would have been treated, because of her (or his) sex.
In the fields of employment and related fields33, in relation to barristers/advocates and in relation to vocational training (as set out in Part III of the SDA), indirect discrimination will occur where a person applies a provision, criterion or practice to both sexes, but it puts or would put women at a particular disadvantage when compared with men (or vice versa); it puts the particular woman complainant at that disadvantage, and is such that the discriminator cannot show it to be a proportionate means of achieving a legitimate aim.
In all other sections of the SDA - relating to the fields of the exercise of public functions, education and goods, facilities or services (except those which relate to barristers/advocates or vocational training referred to above) - indirect discrimination occurs where a requirement or condition is applied to both women and men, but the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it (or vice versa), and it is not justifiable, irrespective of sex, to apply that requirement or condition, and it is to the particular woman’s detriment because she cannot comply with it.
For example, an unnecessary requirement to be under 5' 10" would discriminate against men; a requirement to work full-time or refusal to allow flexible working might be unlawful indirect discrimination against women.
Discrimination on grounds of gender reassignment
There are special provisions prohibiting discrimination on the grounds that a person intends to undergo, is undergoing or has undergone gender reassignment. These prohibitions apply in relation to employment and related fields, discrimination by, or in relation to, barristers/advocates, and in vocational training (including further and higher education) as set out in Part III of the SDA. From December 2007, the SDA will be amended to implement the Goods and Services Directive 2004/113 and discrimination on the grounds of gender reassignment will then be expressly prohibited in goods and services.
Discrimination on the grounds of pregnancy or maternity
Less favourable treatment on the grounds of pregnancy, including pregnancy-related sickness, and maternity has been found by the courts to amount to direct discrimination. In the employment field, in vocational training and in relation to barristers and advocates, express provisions apply and these are set out in Part I of the SDA. From December 2007, the SDA will be amended to implement the Goods and Services Directive 2004/113 and discrimination on the grounds of pregnancy or maternity will then be expressly prohibited in goods and services.
33 The SDA sets out particular provisions relating to the employment field covering: employers, contract workers, office holders, partnerships, trade unions, qualifying bodies, vocational training providers, employment agencies, training commissions, police, midwives and ministers of religion.