Chapter 16Employing labourSouthwark London Borough Council(2003). The com-
plainant brought a claim for racial discrimination. He
was an accountant and claimed his pay grading was lower
than comparable white workers in similar employment.
As part of the procedure he had access for the first time
to his personnel file. This showed that he had been
turned down for promotion nine years earlier, though
he was the best candidate. The Court of Appeal extended
the time limit to allow him to bring a claim in regard to
the promotion discrimination.
Relationship between the Sex Discrimination
Act and the Equal Pay Act
The two Acts do not overlap. Complaints of discrimina-
tion in regard to pay and other non-monetary matters
governed by the contract of employment, such as hours
of work, are dealt with under the Equal Pay Act and
complaints of discrimination in regard, for example, to
access to jobs are dealt with under the Sex Discrimina-
tion Act. A complaint to an employment tribunal need
not be based from the beginning on one Act or the other.
A tribunal is empowered to make a decision under
whichever Act turns out to be relevant when all the facts
are before it.
Discriminatory advertisements for employees
Discrimination legislation makes it unlawful to place
advertisements for employees which are discriminatory
unless they relate to a recognised exceptional case, as
where, for example, there is a GOQ. Thus job descrip-
tions such as ‘waiter’, ‘salesgirl’, ‘stewardess’ or ‘girl
friday’ have largely disappeared from our newspapers
and one now finds the descriptions ‘waiter/waitress’ or
the expression ‘male/female’ as indicating that both sexes
are eligible for employment. However, one still sees
advertisements which are clearly intended to attract
female applicants which, nevertheless, remain within the
law, e.g. ‘publishing director requires sophisticated
PA/secretary with style and charm who can remain cool
under pressure’.
Before legislation relating to discrimination came into
force, advertisements in the UK were discriminatory mainly
as regards sex, but obviously an advertisement which
said ‘Chinese only’ would be unlawful unless there was a
GOQ as, for example, there would be where the advert-
isement was for a waiter in a Chinese restaurant.
As regards sanctions, the placing of discriminat-
ory advertisements may lead to the issue of a non-
discrimination notice by the appropriate Commission;
this, if not complied with, may lead to proceedings being
taken by the Commission in an employment tribunal.
If the employment tribunal accepts the contention of
discrimination and yet the advertiser does not comply
but continues to advertise in a discriminatory way, the
Commission may take proceedings in the county court
for, among other things, an injunction. If this is not
complied with, the advertiser is in contempt of court
and may be punished by a fine or imprisonment unless
he complies.
In addition, it is a criminal offence to place a discrim-
inatory advertisement and those who do so may be tried
by magistrates and are subject to a fine. The person who
publishes the advertisement, e.g. a newspaper proprietor,
also commits a criminal offence. However, he may not
know precisely that the advertisement is discriminatory.
For example, without a knowledge of the advertiser’s busi-
ness, he cannot really know whether there is a GOQ or
not. Accordingly, he is given a defence to any criminal
charge if he can show that in publishing the advertisement:
(a) he relied on a statement by the person placing it
to the effect that it was not unlawful and on the face
of it might come within one of the exceptional
cases; and
(b) it was reasonable for him to rely on that statement.
By reason of a section inserted in the Disability
Discrimination Act 1995 by the Disability Discrimina-
tion Act 1995 (Amendment) Regulations 2003 (SI 2003/
1673), it has, since 1 October 2004, been unlawful to
publish or cause to be published a disability discrim-
inatory advertisement inviting applications for a job
or for training or other relevant employment benefit.
The changes to be effected by the new Act are needed
because the above provisions did not prohibit third par-
ties such as newspapers from publishing discriminatory
advertisements on behalf of the persons placing them.
The Act fills that gap and prohibits third-party publishers
from publishing such advertisements. Third parties have
a defence if they rely upon a statement by the person
placing the advertisement that it is not unlawful and
it was reasonable to rely on that statement. It becomes
an offence for the person placing the advertisement to
knowingly or recklessly make a false statement as to the
lawfulness of a relevant advertisement.Age discrimination
The Employment Equality (Age) Regulations 2006 (SI
2006/1031) came into force from 1 October 2006.525