International Women’s Day provides an opportunity to celebrate female excellence and the achievements of women across the globe, both past and present. There has undoubtedly been considerable progress for women but alongside the gains, it is essential that we examine this progress and consider if more can be done, particularly for women in the workplace.
Employment law is a fluid area of law, constantly updating to reflect the world around it. It is here where we see perhaps some of the most far reaching legislative protections for women. Prior to the enactment of the Equality act 2010, equality protection was spread amongst individual pieces of legislation such as the Disability Discrimination Act 1995, the Race Relations Act 1976 and the Sex Discrimination Act 1975. The Equality Act 2010 was introduced to codify and harmonise these separate pieces of legislation. It introduced the concept of protected characteristics, of which there are 9, sex being one of them and pregnancy/maternity another. The function of the Act is to define unlawful discrimination and does this by splitting discrimination into direct and indirect discrimination.
Direct discrimination is usually the easiest to spot. It is where A treats B less favourably than A would or does treat another, because of B’s protected characteristic. A clear example is where an employer promotes a man over a woman, because of the woman’s sex. Indirect discrimination is a little bit trickier. It is where a policy, criterion or practice which, on its face, appears to be applied neutrally, in fact places those with a protected characteristic at a particular disadvantage when compared to those without the characteristic. An example is a policy which requires members of the police to be a certain height. This looks like a policy that applies to everyone equally but in fact places women at a particular disadvantage as, biologically, they tend to be shorter than men. While direct discrimination cannot be defended, indirect discrimination can be objectively justified.
The Equality Act 2010 also prohibits harassment because of the protected characteristic defining this as unwanted conduct which has the purpose or effect of violating a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. The Act also includes a separate prohibition for unwanted conduct of a sexual nature, having the same purpose or effect as above. This means that comments or conduct about women generally that humiliate, offend or intimidate are prohibited as are comments or conduct that are sexualised in nature.
The specific ground of pregnancy and maternity provides a further level of protection for women who have families. As well as the provisions outlined above, there are greater protections from redundancy for those on maternity leave and a dismissal may be automatically unfair if the reason or principal reason for the dismissal is pregnancy, child birth or maternity leave.
And yet despite the robust protections in place, sex discrimination continues to be a prevalent issue across the UK. What we have seen over the last year in light of sexual harassment scandals in different industries is that despite the legislative protections in place, women are continuing to suffer harassment and discrimination in the workplace. Projects such as Everyday Sexism has been collecting stories and accounts from women of sexism and harassment in their day to day lives and along with the TUC, suggest that 52% of women have suffered harassment at work in some form or another. The idea that an employee can be degraded and humiliated while at work, that their dignity is violated by a colleague or manager, even on a one off occasion, is a sobering thought.
Looking specifically at mothers, the Equality and Human Rights Commission examined pregnancy discrimination in 2016 by way of a survey of both employers and employees. Their results made for difficult reading at times. They found that 77% of women suffered a negative or discriminatory experience during pregnancy, maternity leave and/or returning from maternity leave. 50% stated that they suffered a negative impact on opportunity, status or job security. 11% felt they were forced to leave their job.
When Emeline Pankhurst and the Suffragettes fought for votes for women, they knew they were fighting for more than just the right to vote. It was the right to be seen and heard. The right to have an opinion that counted. The right to be a part of society. Increasing the rights of any group gives greater power, autonomy and agency. But it is not enough that rights are given or protections set out in legislation. They must be honoured and defended if they are to have any teeth. What the above figures show is that despite having a robust set of laws covering unlawful discrimination, it continues to be a feature in a working woman’s life. And this is before we being to look at womens’ pay, the gender pay gap and the general value placed on female focused work.
As a society we need to have a broader cultural conversation about gender equality and sex discrimination, about why it remains widespread. We need to look at the unconscious bias that plays a part in our decision making and challenge it. We need to check our privilege and recognize that it can result in such invidious discrimination. Gender equality is not about removing rights from another. It is about sitting at the same table. As we consider the achievements of female scientists, economists, lawyers, artists, writers and musicians on International Women’s Day, we should also think of those who didn’t quite make it, who were unable to achieve their potential, who were pushed out because quite frankly it was too hard to be a woman in their line of work.
