Equality law: what are protected characteristics?

Equality law: what are protected characteristics?

Under the Equality Act 2010, employers have a duty to provide all their employees (or potential recruits) with equal opportunities and to ensure that they do not suffer any form of direct or indirect discrimination in the workplace as a result of certain personal characteristics. These characteristics are protected by section 4 of the Act - and the types of “protected characteristics” are as follows:

Age - a relatively new-comer to the forms of discrimination which are prohibited in the workplace. Although age discrimination is normally associated with older employees (especially in light of the abolition of the default retirement age), it’s just as relevant to young workers who are denied work on the basis of perceived inexperience due to their age (as opposed to actual lack of skills).

Disability - this applies to both physical and mental impairments which have a substantial and long-term adverse effect on an employee's ability to carry out normal day-to-day activities. In addition to ensuring that no direct discrimination takes place, employers are also required to make “reasonable adjustments” to enable disabled employees to carry out their job duties.

Gender reassignment - this applies both to transsexual employees who are undergoing or planning to undergo gender reassignment, as well as those who have already made the transition. Employers should be particularly careful to ensure that any malicious “banter” directed towards transsexual employees is eliminated from the workplace.

Marriage and civil partnership - no distinction should be made between employees who are married (or in a civil partnership), with those who are single or not in an officially recognised relationship. So, for example, there should be no expectation that an employee without “commitments” will stay in the office later than their married counterparts.

Pregnancy and maternity - this relates to female employees who are expecting a baby or are taking maternity leave. Employers should not treat members of staff unfavourably due to their pregnancy, any illness resulting from their pregnancy or because they take any maternity leave to which they are entitled. Under no circumstances should the pregnancy or maternity leave of an employee be taken into account when deciding on redundancies or in determining dismissal or any sort of disciplinary action against this employee.

Race - this includes colour, nationality and ethnic or national origins. Employers should take steps to stamp out any racist bullying or offensive jokes - even if not directly targeted at the particular race of an employee. Although employers should check that prospective employees are legally allowed to work in the UK, they should carry out any such checks on a consistent basis.

Religion or belief - most mainstream religious beliefs are protected. Certain philosophical beliefs (including atheism, humanism, pacifism, vegetarianism and belief in man-made climate change - but not political affiliation) are also included.

Sex - one of the first types of discrimination to be made illegal in the UK, this was originally associated with unequal pay. But, as well as ensuring that men and women are treated equally in terms of pay, perks and promotion, employers must also take measures to prevent any sexual harassment - whether physical or verbal. Office “banter” must be kept in check, which includes lewd jokes and suggestive comments.

Sexual orientation - employers should treat heterosexual, homosexual and bisexual employees equally, as well as ensuring they do not suffer any harassment in the workplace on account of their sexual orientation.

Is discrimination on grounds of protected characteristics ever justified?

There are narrow exceptions, where an employer may be allowed to discriminate against certain employees or potential employees:

If they can objectively justify discrimination as ‘a proportionate means of achieving a legitimate aim’. They must consider whether there is another way of achieving the same aim. This justification can be difficult to prove and legal advice should be sought before attempting to use this justification.

If there is a genuine occupational requirement: this could be, for example, specifically hiring a young black female actress to act in a play where the part is that of a young black female character; or if the Catholic church needs to recruit a new priest who is an unmarried heterosexual male.

To find out more about preventing discrimination in the workplace, and how to comply with other types of employment law legislation, contact the employment team at W H Matthews & Co today.