In Employment Solicitor Justine Mears’ first Coffee Break Briefing, she explored the nine protected characteristics under the Equality Act 2010, what they mean in practice and when treatment could amount to discrimination.
Understanding the protected characteristics is important for both employers and employees. They form the basis of many discrimination protections in the workplace and help ensure people are not treated unfairly because of who they are.
You can watch a recording of Justine's webinar using the link below.
What are protected characteristics?
Protected characteristics are personal traits or statuses that are protected from discrimination under the Equality Act 2010.
There are nine protected characteristics:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
When could age discrimination arise?
Age discrimination can happen where someone is treated less favourably because of their age or because they belong to a particular age group.
This can include situations where:
- Someone is treated differently because they are, or are not, a particular age.
- Someone is treated differently because another person believes them to be a particular age.
- Their treatment is connected to someone else of a particular age or age group.
There are some circumstances where different treatment because of age may be lawful. For example, an employer may be able to justify an age requirement where it is necessary for a particular role or where the treatment can be objectively justified.
What counts as a disability?
Under the Equality Act, a person will generally be considered disabled if they have a physical or mental impairment that has a substantial and long-term negative effect on their ability to carry out normal day-to-day activities.
There are certain conditions that are automatically treated as disabilities from diagnosis, including cancer, HIV and multiple sclerosis.
For employers, it is important that they consider each condition on a case-by-case basis before making assumptions as to whether the condition
What does gender reassignment mean?
Gender reassignment is a protected characteristic where someone is proposing to undergo, is undergoing or has undergone a process for the purpose of reassigning their sex.
Employers should be mindful that protection is not limited only to someone who has completed a particular medical process. The protection can apply much earlier.
What does race discrimination cover?
Race is broader than ethnicity alone. It can include:
- Colour
- Nationality
- Ethnic origins
- National origins
An important point for discrimination claims is that poor or unfair treatment does not automatically mean that discrimination has taken place. There must be evidence connecting that treatment to the protected characteristic.
What is protected under religion or belief?
The protection for religion or belief is broad.
Religion can include any religion, as well as a lack of religion. Belief can include religious or philosophical beliefs, as well as a lack of belief.
Not every opinion will qualify as a protected philosophical belief. A belief must meet certain legal criteria before it receives protection.
Employment tribunal cases have considered a wide range of beliefs, including ethical veganism and certain political or philosophical beliefs.
For employers, this can be a particularly complex area because strongly held beliefs may come into conflict with the rights and beliefs of others.
What does sex discrimination mean?
Sex discrimination involves treating someone unfairly because they are a man or a woman.
It can arise in many different areas of employment, including recruitment, promotion, workplace treatment and dismissal.
How are married people and civil partners protected?
Marriage and civil partnership is also a protected characteristic.
This means an employee should not be treated less favourably simply because they are married or in a civil partnership.
For example, an employer could potentially discriminate against an employee if they dismissed her after discovering she was married because they believed a married woman should be at home rather than working night shifts.
The important point is that decisions about somebody's employment should not be based on assumptions about how a married person or civil partner should behave.
What does sexual orientation cover?
Sexual orientation relates to a person's sexual attraction towards:
- People of the same sex.
- People of the opposite sex.
- People of either the same or opposite sex.
Employees are protected from discrimination because of their sexual orientation, including where someone incorrectly assumes what their sexual orientation is.
When does pregnancy and maternity protection apply?
Pregnancy and maternity discrimination can arise where someone is treated unfavourably because:
- They are pregnant.
- They are on maternity leave or have the right to take maternity leave.
- They experience illness connected with their pregnancy.
The law protects people from discrimination during the 'protected period'.
This begins when the pregnancy starts and usually ends when maternity leave finishes or the employee returns to work, leaves their employment or moves into another type of leave.
An important practical point is that an employee's first day physically back in the workplace will not always be the end of the relevant period. For example, somebody may take annual leave immediately after maternity leave.
Treatment taking place after the protected period may still potentially amount to another form of discrimination, depending on the circumstances. This can include situations connected with the continuing effects of pregnancy-related illness.
What should employers take away from the nine protected characteristics?
The Equality Act protects employees and workers against a wide range of discriminatory treatment, but discrimination is not always obvious.
Employers should ensure that decisions around recruitment, promotion, pay, workplace policies, performance management and dismissal are based on legitimate reasons rather than assumptions about an individual's protected characteristics.
It is also important to remember that unfair treatment and unlawful discrimination are not necessarily the same thing. Where a discrimination claim is being considered, there will usually need to be evidence linking the treatment to the relevant protected characteristic.
Employment law experts
If you have any questions regarding this webinar, you can get in touch with a member of the team on 01202 499255 or by filling in the form at the top of the page. We offer all new clients a free initial chat.
In case you missed this month’s briefing you can sign up to our mailing list here to hear about future Coffee Break Briefings and employment updates.
The Employment Team will also be hosting an in-person employment law seminar on Wednesday 14 October, covering fair dismissals, guidance on the new reduced qualifying period, further trade union changes and other key updates arising from the Employment Rights Act.
The next Coffee Break Briefing will take place on Wednesday 4 November, when Chris will explore unlawful contact and what employers need to be aware of.
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