Discrimination by segregation

by Laurie Anstis on May 10, 2011

The Apprentice starts again this evening. Usually for the first few episodes, the contestants are divided up on gender lines into two teams – men and women.

Is this permitted in the workplace? It looks like it might be sex discrimination.

Section 13(5) of the Equality Act 2010 specifically provides that segregation along racial lines is against the law. An individual can bring a race discrimination claim on the basis of segregation without the need to prove that the segregation itself disadvantages them. There is no similar provision dealing with segregation on the basis of gender.

The leading textbook, Harvey on Industrial Relations and Employment Law, says that “segregation linked to other protected characteristics [such as gender] may be direct discrimination. However, it is necessary to show that it amounts to less favourable treatment.

This means that where the segregation is gender-based, a woman or a man would have to show that the segregation disadvantaged them. It is only in the context of racial segregation that a discrimination claim can be brought simply because there has been segregation, without the need to show that it leads to a disadvantage for one group or another.

2 comments

Since the test for less favourable treatment is that the claimant “can reasonably say he would have preferred not to be treated differently” (Chief Constable of West Yorks v Khan [2001] ICR 1065 (HL)), it doesn’t seem too great a jump to conclude that any form of enforced segregation based on a protected characteristic is potentially discriminatory. The claimant doesn’t have to prove there is something objectively “worse” about being in a single-sex group.

by Mrs Markleham on 10 May 2011 at 5:08 pm. #

Good to hear from you Mrs Markleham.

by lanstis on 10 May 2011 at 5:20 pm. #