The definition of “sex” and how this characteristic is protected for the purposes of discrimination law has been under the spotlight recently due to a key judgment of the Supreme Court. Read on for our summary of essential points that employers need to be aware of.
As mentioned in our introductory articles in this series, “sex” is one of the nine protected characteristics under the Equality Act 2017 (the “Act”) which gives rise to protection against sex discrimination, harassment and victimisation. The protection extends to job applicants, employees, and anyone contracted to perform work personally.
“Sex” means biological sex
Sex discrimination occurs when someone is treated unfavourably for reasons related to their sex. For some types of discrimination (see “direct discrimination” below) it is necessary to show less favourable treatment by comparison with someone of the opposite sex.
Whilst there is no specific definition of “sex” in the Act, it does refer to being a man or a woman, and states that men can share the protected characteristic with other men, and women with other women. The Act does not specifically refer to a biological definition of “man” or “woman”, so what about those who have changed their birth sex and who have transitioned, or are transitioning?
The recent judgment of the UK Supreme Court in For Women Scotland Ltd[1] (also known as the Scottish Ministers case) provided clarification on this point and confirmed (whilst recognising that the decision would have ramifications for trans women and trans men, also for employers, associations, schools and other service providers) that sex means biological sex. (NB Gender reassignment is a separate protected characteristic distinct from “sex” and is covered here.) You can also read our related case commentary on the Supreme Court decision for further analysis here.
Since the UK Supreme Court decision in April 2025, employers are having to give thought to a number of issues from the point of view of how “sex” is defined including when taking any positive action (i.e. measures for the purposes of promoting equality and diversity within the workforce), the provision of single sex or separate sex facilities at work (e.g. washrooms and changing rooms) and in respect of the application of genuine occupational requirements in recruiting for roles where sex is relevant. Given the existing alignment between Isle of Man equality laws and the UK’s Equality Act 2010, it is anticipated that the IOM would apply a similar approach and interpretation to questions of discrimination based on sex and who is a “comparator” for the purposes of claims of direct sex discrimination.
Protection against discrimination relating to sex
In the Isle of Man, the following are potential claims arising under the Act:
- Direct discrimination – where an employee is treated less favourably because of their sex than someone of the other sex would be treated in the same circumstances, ie advertising a job for a ‘waiter’ suggesting that the job is only open to men.
- Indirect discrimination – when a working practice, policy or rule is applied equally to all employees but puts someone of one sex at a disadvantage compared to the opposite sex, ie an employer brings in a policy which requires all employees to work full-time. This policy could disadvantage women as a group, since women (still) typically bear a greater proportion of domestic and childcare responsibilities than men. Unless the employer can objectively justify the need for a full-time worker to do a particular job, the requirement could be indirectly discriminatory.
- Harassment – where an employee is subject to unwanted conduct related to sex which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for them, or of violating their dignity, ie an employee seeking promotion is told by their manager that they will get the job if they sleep with them. There is no requirement for the employee to have made it clear that the conduct is unwanted in order for it to constitute harassment and a single incident can be enough.
- Victimisation – occurs when someone is treated less favourably as a result of being involved with a discrimination or harassment complaint which concerns the protected characteristic of sex. For example, an employer threatens to dismiss a member of staff because they think the employee intends to support a colleague’s sexual harassment claim.
There are limited exceptions employers may rely on when facing a claim of sex discrimination. These include where being of a particular sex is essential for the job (also known as a genuine occupational requirement), e.g. when auditioning for a male lead role in a play or recruiting for a female attendant for a female changing room at a gym. There are also specific occupational requirement provisions that deal with organised religion, employers with a religious ethos, and armed forces, amongst other narrowly defined derogations.
Case law examples
In terms of how the law has been applied in practice, the following are illustrations from decided (mostly UK) cases which help to put the legal protections in context:
- Failure to provide a toilet for the exclusive use of women amounts to direct sex discrimination (Abbas v ISS Facility Services[2])
- Requiring employees to work Monday to Friday 9 am to 6 pm in the absence of objective justification (and not properly considering a flexible working request) led to a finding of indirect sex discrimination in A Thompson v Scancrown Ltd t/a Manors (and an award of compensation in excess of £180,000)
- Failure by employer to take male employee’s complaint as seriously as female’s complaint constituted sex discrimination (Swaciak v Rowse Honey Limited)
- More senior male employee holding a female hotel worker around the waist was sexual harassment – ie unwanted conduct of a sexual nature (Wango v Royal Yacht Hotels Limited in the Jersey Employment Tribunal) – see also, with some parallels, the Irish case of Harty v Causeway Management Ltd in which the employer failed to carry out a proper investigation against an alleged male perpetrator of sexual harassment and allowed him to resign/retire;
- Claims of direct sexism and victimisation (plus equal pay) succeeded in the case of Macken v BNP Paribas where the claimant, a city banker, had been subjected over a long time to acts of sexism. She was then treated poorly when she did raise a complaint, so much so that the tribunal allowed aggravated damages as part of an overall award that exceeded £2m.
Guidance for employers
Employers are now generally more aware of the importance of having a diverse and inclusive workplace culture and how acts of sex discrimination can arise. At the same time, awareness and expectations of employees themselves have changed – working culture isn’t what it was 20+ years ago (and generally for the better). Inevitably, though, there are areas in which things can be tightened up and employers can protect themselves against sex discrimination and related claims:
- Recruitment – carefully consider how you write your job adverts and where these are advertised. Do not ask candidates personal questions at interview, only ask for information relevant to the job. Consider positive action if women or men are underrepresented in the company. Beware of bias in terms of qualities considered positive or desirable and whether these are objective or based on “stereotypes”.
- During employment – implement and uphold EDI (equality, diversity and inclusion) policies and values within the workplace, operate grievance and disciplinary procedures fairly bearing in mind duties to both sides where there is an issue between employees of different sexes, maintain a policy again bullying and harassment and provide equality training to people managers and decision makers.
- Promotion opportunities and appraisals – save for where an occupational requirement is justified, provide details of job opportunities to all relevant staff, irrespective of sex. Do not discourage someone from applying because of their sex. Consider the ways of measuring “suitability” and performance and whether these are fair and unbiased. (Research shows that, in many cases, assumptions about different behaviours as between men and women are not borne out by the evidence which means differentiation is largely down to bias.)
- Dismissals – clearly, it would be discriminatory to dismiss an employee solely on the basis of sex (subject to demonstrating that there is a genuine occupational requirement – see above). Consider, however, how capability and SOSR[3] dismissals may be arguable acts of sex discrimination and ensure the rationale for terminations is sound, non-discriminatory and evidence based.
- Redundancies – where there is an element of selection, ensure that the criteria are not directly or indirectly discriminatory on the basis of sex. Apply objective and measurable criteria, NB prioritising flexibility in relation to working hours may adversely affect single parents and therefore constitute sex discrimination as a greater proportion of single parents are women. Similarly, beware of decisions based on retaining employees who are perceived to be a “good fit”; certain groups may be less likely to join in workplace banter or after work socialising and hence be considered less of a “team player”.
[2] Case No. 8000146/2023 Glasgow ET
[3] “Some other substantial reason” – ie dismissal for a justifiable reason other than conduct, capability or redundancy.
