Hilary Slater, solicitor for the Equal Opportunities Commission, urges licensees to call time on sex discrimination
In 1982 a Mrs French sued and won her case against a licensee who banned women from playing snooker in his pub. A few years earlier, another woman won a case challenging her exclusion from a pub solely because of her sex.
Such blatant sex discrimination is, hopefully, a thing of the past. However, some publicans still risk falling foul of the law if they are not up to speed on sex discrimination legislation.
Getting it wrong can be expensive. Unlimited compensation can be awarded for sex discrimination. Claims are also costly in lawyers' fees and management time. Bad publicity is bad for business while fair treatment of all staff and customers can help a business prosper.
On first reading, this quick guide to the law on sex discrimination may seem daunting but much of it is simply common sense. Most publicans already comply with the law and have recognised that treating men and women, whether they are staff or customers, fairly and with respect makes good business sense.
- Recruitment
It is illegal to discriminate on grounds of sex when recruiting staff, with limited exceptions. Last year, a bar owner in Wolverhampton was found to have acted unlawfully when he asked a Jobcentre to supply only male staff, saying "I need a strong fellow to work in the cellar".
Employers should not try to sidestep the law, for example by requiring employees to wear skirts or lipstick as a means of recruiting women. Imposing a job requirement that is generally more difficult for members of one sex than the other to comply with could be unlawful indirect sex discrimination if the requirement is not genuinely necessary. A requirement to be able to lift heavy weights could unlawfully discriminate against women if the job rarely requires this in practice or lifting could be done by two employees together.
Pay
Women and men are legally entitled to equal pay when doing broadly similar jobs or where their jobs are different but of equal value. Most employers are confident they do not pay women less than men yet very few have ever reviewed their pay system to ensure it is fair. Research shows there is still a pay gap between the sexes amounting to 18 per cent.
Employers can help to ensure they pay fairly by:
- carrying out a simple check of their pay system to identify any sex bias
- making sure their pay system is transparent so people can see how their pay compares with others.
Pregnant employees
It is unlawful to refuse to employ someone, to sack them or otherwise treat them less well because they are pregnant.
Mrs Thornton, a chef at the Jacobean Lodge Hotel, was awarded over £12,000 in compensation when she was not allowed to attend a food hygiene course because she was pregnant and then dismissed because her employer did not want to pay statutory maternity pay. All pregnant employees now have a right to maternity leave.
Employers must also carry out a health and safety risk assessment when they know an employee is pregnant.
Dress codes
Rules about clothes and appearance are not a problem as long as they do not discriminate unlawfully. The courts have held that rules may be different for men and women where they reflect conventional standards of dress. Most people now regard trousers as conventional dress for women and a tribunal recently held that banning a woman from wearing trousers was unlawful sex discrimination.
In a case early last year Mark Pell won a sex discrimination claim after being refused a job as barman at the Wheatley Hotel unless he cut off his ponytail.
Staff harassment
A barmaid at a nightclub in Nottingham was awarded £8,000 compensation when she was dismissed on a trumped-up charge of theft after refusing to comply with a request from a club manager for sexual favours.
Sexual harassment is unwelcome conduct of a sexual nature, or other behaviour based on sex that affects the dignity of women and men at work.
Publicans will be liable if they sexually harass staff. They will also be liable if one of their members of staff harasses another, unless they can prove they did what they reasonably could to prevent it. If an employee is harassed by a customer the licensee could again be legally responsible if they could have stopped it happening but didn't.
This principle was demonstrated in a race discrimination case not long ago. Waitresses who were subjected to racist remarks by Bernard Manning, the guest speaker at a dinner, claimed race discrimination against their employer, De Vere Hotels. The Employment Appeal Tribunal said that their employer could have controlled the situation by warning the assistant managers to look out for Bernard Manning and to withdraw the waitresses if things became unpleasant. Their employer could, therefore, be liable for race discrimination. The same principles would apply if staff were being sexually harassed by customers.
A sexual harassment policy can help to prevent harassment and, if properly implemented, may give the employer a defence if an employee harasses another employee or a customer.
Customers
Sex discrimination in the provision of goods, facilities or services to the public, or a section of the public, is unlawful. A policy on equal opportunities in service delivery can help staff to understand their obligations and prevent unlawful sex discrimination.
Licensees are entitled to refuse service to any individual, provided that the refusal does not constitute unlawful discrimination.
Customer dress
Publicans can insist that customers are smartly dressed but any rules on dress must not discriminate unlawfully on grounds of sex.
A Mr McConomy was asked to leave a bar in Northern Ireland because he was wearing earrings. A woman wearing earrings would have been served. A court held that the rule against men wearing earrings was unlawful sex discrimination because it is now generally accepted that both women and men wear jewellery.
Transsexuals
Transsexuals are now protected from discrimination in employment in most circumstances and there is a strong argument that discrimination against transsexual customers is illegal.
Last year, publican David Woodhead paid £1,000 in compensation and costs to settle a claim brought by transsexual Lisa Jones after he had asked her not to go to his pub any more, claiming her presence was affecting his business.
A pub manager in another case argued that he had to exclude a transsexual because some other customers were becoming aggressive towards her. In these circumstances the licensee should tackle the source of the problem, the aggressive customers, rather than the victim, just as the licensee would deal with a racist incident by speaking to, and if necessary, excluding the racist, not the victim.
Sexual harassment
Pub owners are liable if they sexually harass customers and are also liable if their staff harass a customer, unless they have taken reasonable steps to prevent the harassment.
If a customer is sexually harassed by another customer and the publican could have prevented the harassment, the publican is legally responsible.
"Mine's a pint"
Male and female customers must be treated in the same way. A court agreed that refusing to serve women pints was unlawful sex discrimination. A wine bar's rule that women could only be served at tables while men could choose to drink at the bar or at tables was also unlawful.
Some pubs and nightclubs try to encourage women into their premises using special offers giving women free or cheaper drinks or entry. If the same offer is not available to men, this is against the law. A court has held