This section looks at what counts as sex discrimination and how health issues that differently affect women and men impact on their work.
On this page:
- What is the law on sex discrimination?
- What things count as sex discrimination in law?
- Is everyone paid equally nowadays?
- Is there a law against sexual harassment?
- Does discrimination law apply outside the NHS?
What is the law on sex discrimination?
Women and men are protected by law from sex discrimination at work.
The law giving workers in England, Wales and Scotland protection from sex discrimination is called the Equality Act 2010. There is separate but similar law in Northern Ireland.
The Act puts additional obligations on the NHS (and other public bodies). They must act to eliminate sex discrimination and promote equality of opportunity between men and women. These requirements are called the Public Sector Equality Duty.
This Duty also applies to private firms or charities which carry out public functions.
What things count as sex discrimination in law?
The types of employer conduct that might be considered sex discrimination under the law range from the more obvious – appointing a man to a post rather than a more qualified woman – to procedures which indirectly disadvantage one sex.
The most obvious form of unlawful sex discrimination is when the employer treats someone less favourably than they would someone of the opposite sex. This is direct discrimination.
An example could be telling a woman she can’t be appointed to a job because 'women don’t like dirty work'.
Direct discrimination also covers women who are treated negatively because they are pregnant or on maternity leave.
But discrimination doesn’t have to be so obvious to be unlawful. An employer might be guilty of indirect discrimination if it has a way of operating that works to the disadvantage of one sex.
An example would be to require an employee to work unsocial hours, which might work against women with childcare commitments.
If an employer treats someone differently because they have previously complained about sex discrimination, they may be guilty of unlawful discrimination in the form of victimisation.
Harassment related to someone’s sex can be unlawful under the Equality Act.
Is everyone paid equally nowadays?
Across the country, there was still a gender pay gap of 8.3% in 2022.
For staff in the NHS, equal pay for people doing the same job is not an issue. This is because, under Agenda for Change, everyone on the same grade gets paid the same basic rate.
However, the law says there must also be 'equal pay for equal value'. That is, where two jobs are different but they are considered to be of a similar level of skill, effort and responsibility they should be paid the same rate.
The job evaluation scheme under Agenda for Change ensures this holds true in the NHS.
Members not covered by Agenda for Change who believe they have a justified claim for equal pay will be supported by the CSP.
Large employers, including those in the private sector in England, Scotland and Wales must comply with gender pay gap reporting regulations.
Is there a law against sexual harassment?
Sexual harassmentcan be unlawful under the Equality Act.
If an action relating to someone’s sex violates that person’s dignity or creates an intimidating or hostile environment, that counts as unlawful harassment.
Unlawful sexual harassment can be verbal, non-verbal or physical.
Does discrimination law apply outside the NHS?
The Equality Act 2010 applies to people working in the private sector in the same way as the public sector.
It does not cover those who are in business on their own account, ‘freely selling their own goods and services at arm’s length to their own clients’.
Private firms and voluntary organisations that carry out public functions (including on behalf of the NHS or local authorities) are also covered by the Public Sector Equality Duty.
Are men covered by sex discrimination law?
Physiotherapy is a female-dominated profession, although men in 2019 accounted for 22% of CSP members.
Men can experience difficulties as a minority group. For example, they can suffer from stereotyped views about gender roles and can sometimes find it harder to access leave for family or caring purposes.
The Equality Act applies to both men and women.
Can people take time off for fertility treatment?
There is no legal right to time off for fertility treatment, though there may be contractual rights in some workplaces.
Employees undergoing IVF are protected from pregnancy discrimination as soon as they become pregnant.
Is there help for women going through a difficult menopause?
Some women experience very debilitating symptoms due to the menopause.
There are ways in which work can be made more bearable in such cases. Examples include flexible rest breaks and work patterns, paid leave for medical appointments and adjustable workplace temperatures.
Managers should conduct risk assessments with reference to menopause and perimenopause.
Ideally these should be negotiated collectively rather than left to individuals to take up with management.
If a worker is put at a disadvantage and treated less favourably because of her menopause symptoms, this could count as discrimination under the Equality Act.