Protected Characteristics in the Workplace

The Equality Act 2010 was introduced as the primary piece of legislation for the enforcement and prevention of discrimination. Its powers extend to the workplace, supporting anti-discrimination in all areas of employment.

The Act covers the specific ways in which certain personal characteristics known as protected characteristics are safeguarded, and looking specifically at employment, sets out what employers must and must not do to comply with their duties.

What are protected characteristics?

Protected characteristics are a set of qualities, attributes or traits that the law specifically protects from discrimination under the Equality Act 2010. There are nine characteristics in total listed under sections 4 – 12 of the Act.

Age

An employer cannot discriminate against, victimise or harass an employee because of their age.

Disability

It is unlawful for an employer to discriminate, victimise or harass a person due to a disability. There is additional protection under section 15(1) of the Act where discrimination arising from disability is also prohibited.

The protection under section 15 means that the worker only needs to be treated unfavourably (rather than less favourably than another worker) due to something that arises from the disability, such as having to take time off work.

However, in relation to this particular form of protection, an employer has the defence of legitimate aim to rely on where the detrimental treatment was proportionate to achieving a legitimate purpose.

Employers are also required to make reasonable adjustments to prevent the disabled person from suffering a substantial disadvantage due to a provision, criterion or practice. This can be things such as;

• Making adjustments to premises
• Changing the employee’s work pattern
• Modifying equipment

Gender Reassignment

Any employee who is intending to, currently going through, or has undergone gender reassignment is protected under section 7(1) of the Act. This means that an employer cannot discriminate against a person due to this, and those people are also protected regarding absences from work.

Therefore if an employer treats an employee less favourably for time off work due to gender reassignment than he would for other sickness or injury leave, the employee is being discriminated against.

Marriage & Civil Partnership

This protection only applies to those who are already married or in a civil partnership, and not to those who only intend to be married or part of a civil partnership (section 13(4)).

Pregnancy & Maternity

Alongside the general protections against prohibited conduct under the Act, the protected characteristic of pregnancy and maternity have additional protections afforded to them.

Under section 73, maternity equality clauses are now implied by statute as included in contracts of employment where not otherwise stated to protect maternity-related pay.

Discrimination during employment because of pregnancy and maternity is also covered separately under section 18, which relaxes the need for treatment to be less favourable to that of another person, to only require treatment that is generally unfavourable.

Race

According to section 9(1) of the Act, race includes colour, nationality and ethnic or national origins. Therefore any discrimination on these bases will constitute prohibited and unlawful conduct. This also includes segregating the employee from others because of these characteristics (section 13(5)).

Religion or belief

The protection from discrimination, harassment and victimisation on the grounds of religion or belief also extends to those who have no religion or belief.

Philosophical beliefs are also covered under section 10 but are subject to certain criteria in order to be protected.

Sex

Employees have the right to be protected from discrimination, harassment and victimisation due to their sex. This right applies equally to men and women and can be things such as discrepancies in uniform to not following protocol based on assumptions due to sex (B v A (2010) IRLR 400).

Sexual Orientation

Section 12 protects people from discrimination due to their sexual orientation and applies to sexual orientation towards people of the same sex, of the opposite sex and people of either sex.

Protected characteristics: What is discrimination?

Discrimination under the Equality Act 2010 is less favourable treatment of an individual or group based on a protected characteristic. A person can suffer discrimination directly and indirectly, or as a result of victimisation and harassment.

What is direct discrimination?

Section 13(1) of the Equality Act defines direct discrimination as less favourable treatment of a person due to a characteristic, in comparison to another person who doesn’t share that characteristic. This can be things such as an employer not hiring an equally qualified candidate on the basis of their sexual orientation for example.

What is indirect discrimination?

Indirect discrimination as per section 19(1) of the Act, occurs where a provision, criterion or practice is applied to a person which is discriminatory in relation to a protected characteristic. This can include policies which will put certain groups at a disadvantage, such as a redundancy policy which a significantly lower percentage of women can satisfy than men (Whiffen v Milham Ford Girls’ School (2001) IRLR 468 CA).

There is one defence to indirect discrimination contained in section 19(2)(d) of the Act which permits indirect discrimination where a legitimate aim can be proven for its purpose.

Harassment & victimisation

An employer cannot harass an employee or applicant in relation to a protected characteristic which affects the persons’ dignity or in a way that creates a hostile, degrading, humiliating or offensive environment for the employee or applicant.

There are also specific protections in relation to sexual harassment and harassment related to sex or gender reassignment.

The Act also protects against victimisation due to an employee carrying out one of the following in relation to the Equality Act:

• Bringing proceedings under the Act
• Giving evidence or information regarding any such proceedings
• Doing anything else in relation to the Act
• Making claims of a breach of the Act

What must employers do?

There are various forms of prohibited conduct listed in the Act, and employers must not discriminate against a person because of a protected characteristic in the following circumstances:

Offering employment

The employer must not discriminate against a person based on their protected characteristic in regards to:

• Deciding whom to offer employment;
• The terms offered; or
• By not offering employment at all.

For example, an employer who decides not to interview a candidate based on a non-English surname is carrying out race discrimination.

During employment

The employer must not discriminate against their employee(s) based on their protected characteristics in regards to:

• The terms of employment
• The ability to access opportunities for promotion, transfer, training or any other facility or benefit (both in regards to the means in which it is offered or by not offering it at all)
• Dismissal
• Any other form of detriment

Protected characteristics: Lawful Discrimination

Not all acts of discrimination are against the law, and an employer has two general defences to discrimination that may make their conduct lawful.
Employers are able to directly discriminate because of age where said discrimination can be shown to be a proportionate way of achieving a legitimate aim within the business, for example to ensure people of a certain age group are integrated within the workforce.

There are also more general defences available to an employer: occupational requirement and positive action.

Occupational requirement

An employer may in certain circumstances be able to rely on the discrimination being an occupational requirement as a defence to an allegation of discrimination. An example of this includes requiring an employee to be the same religion as that of the organised religion they are employed by (schedule 9 para 2).

Positive Action

An employer is able, under section 158 of the Act to carry out positive action to promote equality and allows them to consider those with a particular protected characteristic who might otherwise be disadvantaged due to it and take positive action to try to alleviate that disadvantage.

This does not extend however to positive discrimination in which a person with a protected characteristic is favoured more than those without it solely on the basis of possessing it.

What if an employer breaches the Equality Act?

Employers accused of breaching duties under the Equality Act may face discrimination claims from victims at the employment tribunal, and potentially have to pay significant damages.

Employers are also liable for the acts of their employees in the course of employment; therefore if one employee discriminates against another employee, the employer may also be liable if they have not taken reasonable steps to prevent it (s 109(1)).

Why legal advice helps

If you have been discriminated against in the workplace on the basis of one of the protected characteristics, it is important for you to seek legal advice at the earliest opportunity. Discrimination is a complex legal area, and it is important to establish your position fully and assess whether any discrimination that has taken place is actually unlawful.

Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.