Discrimination - Protected Characteristics

What is unlawful discrimination?

The Equality Act 2010 (EqA) prohibits discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services for a protected characteristic (ie age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation).

The EqA protects employees, workers (ie engaged under a contract personally to execute work or labour) and contractors (ie whose labour is supplied by your employer to another person). These rights apply whatever the length of service and whatever hours worked.

Legal protection against unlawful discrimination applies even if some of the work is to be done outside Great Britain but will not apply if the work is to be done wholly outside Great Britain. It applies before, during and after employment.

Age discrimination

Age is defined in the EqA as a reference to:

  • a person who has a particular protected characteristic is a reference to a person of a particular age group.
  • persons who share a protected characteristic is a reference to persons of the same age group
  • an age group is to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.

Disability discrimination 

Disability discrimination does not simply affect those with a physical disability but can affect individuals where an impairment may not be obvious but still be protected under the EqA.

Disability is defined in the EqA as:

  • a person who has a physical or mental impairment
  • which has a substantial and long-term adverse effect
  • on their ability to carry out normal day-to-day activities.

The EqA protects not only those who currently have a disability but also those who have had a disability in the past.

Some conditions are expressly deemed to be a disability under the EqA: blindness; severe sight impairment; cancer; HIV infection and Multiple Sclerosis.  Certain conditions are expressly stated not to be impairments under the EqA: addiction to alcohol, nicotine or any other substance; hay fever and the tendency to steal.

Other conditions are referred to as hidden disabilities or invisible disabilities and include: Asperger’s Syndrome; Autism Spectrum Disorder; Attention Deficit Hyperactivity Disorder; Dyslexia; Dyspraxia; Obsessive Compulsive Disorder; Post-Traumatic Stress Disorder; Diabetes; Epilepsy; Depression; and other mental health conditions.

An employer cannot be liable for:

  • discrimination arising from disability
  • direct disability discrimination
  • failure to make reasonable adjustments

unless it knew, or should have known, about the disability.

Gender reassignment discrimination 

Gender reassignment is defined in the EqA as:

  • proposing to undergo
  • is undergoing
  • has undergone

a process (or part of a process) to reassign the person’s sex by changing physiological or other attributes of sex.

A reference to a person who has the protected characteristic of gender reassignment is a reference to a transsexual person and can be from man to woman or woman to man.

transgender person may identify as transsexual if they desire medical assistance to transition from one sex to another. Transgender people are those whose gender identity does not match the gender they were assigned at birth. A transgender person may undergo the process of aligning their life and physical identity to match their gender identity, which is referred to as transitioning. Proposing to undergo gender reassignment does not require such a proposal to be irrevocable. A person who starts the gender reassignment process but then decides to stop still has the protected characteristic of gender reassignment.

A transsexual person who is at least 18 years old can apply for legal recognition of their acquired gender by applying for a gender recognition certificate to the Gender Recognition Panel. This is done on the basis that the transsexual person has lived in their acquired gender throughout the preceding 2 years and intends to continue to live in their acquired gender until they die. Once a full gender recognition certificate has been issued that person will a member of their acquired gender.

Marriage and civil partnership discrimination

Marriage covers any formal union which is legally recognised in the UK as a marriage, which includes marriage between a man and a woman and between a same-sex couple.

A civil partnership is only between same-sex partners under the Civil Partnership Act 2004.

Single people and people in relationships outside of marriage or civil partnership (whether or not they are cohabiting) do not have this characteristic. People who share the protected characteristic of marriage and civil partnership are those people who are married or are civil partners.

Pregnancy and maternity discrimination

Discrimination because of pregnancy and maternity occurs where an employer treats you unfavourably:

  • during the protected period (ie from when pregnancy starts until it ends, including maternity leave), because of your pregnancy or because of a pregnancy related illness
  • because you are on compulsory maternity leave (ie 2 weeks [or 4 weeks if you work in a factory] following the birth of your baby)
  • because you are exercising or seeking to exercise, or have exercised or sought to exercise, the right to ordinary or additional maternity leave(ie 26 weeks and 52 weeks respectively).

An employer will be guilty of a criminal offence if it allows an employer, worker or contractor to work during compulsory maternity leave.

There is no requirement for a comparator.

All employers are under a duty to carry out a workplace risk assessment to protect the health and wellbeing of its employees, worker and contractors.  However, an employer will be required to carry out a specific risk assessment and alter working conditions or hours of work or provide suitable alternative work to avoid any significant risk to the health and safety of new or expectant mothers.  In some instances, if there is no suitable alternative work, an employer must suspend on full pay for as long as necessary to avoid the risk.

Race discrimination 

Race is defined in the EqA as including:

  • colour
  • nationality
  • ethnic or national origins. 

There is scope for arguing that factors other than colour, nationality, ethnic origin and national origin are covered, such as caste.

A reference to a person who has a particular race is a reference to a person of a particular racial group. Persons who share a particular race is a reference to persons of the same racial group.

The EqA outlaws discrimination in all public authority functions not covered by the EqA, with only limited exceptions. There is a general duty on specified public authorities to work towards the elimination of unlawful discrimination and to promote equality of opportunity and good relations between persons of different racial groups in carrying out their functions. The general duty is supported by specific duties, which are only enforceable by the Equality and Human Rights Commission.

Religion or belief discrimination 

To qualify as religion or belief the case of Grainger plc and others v Nicholson concluded it must:

  • be genuinely held
  • not be an opinion or viewpoint based on the present state of information available
  • be a belief as to a weighty and substantial aspect of human life and behaviour
  • attain a certain level of cogency, seriousness, cohesion and importance
  • be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

To qualify as philosophical belief the case of Grainger plc and others v Nicholson concluded:

  • it must have the same attributes as religious belief
  • it must have a similar status or cogency to a religious belief. However, it need not allude to a fully-fledged system of thought in other words, it does not need to be an “-ism”
  • it need not be shared by others
  • while support of a political party does not of itself amount to a philosophical belief, a belief in a political philosophy or doctrine, such as Socialism, Marxism or free-market Capitalism, might qualify
  • it may be based on science. If Creationism (which is based on faith) is protected, Darwinism (which is based on science) must plainly be capable of being a philosophical belief.

Sex discrimination 

Sex is defined in the EqA as a person’s gender.

The EqA outlaws discrimination in all public authority functions not covered by the EqA, with only limited exceptions. There is a general duty on specified public authorities to work towards the elimination of unlawful discrimination and to promote equality of opportunity and good relations between persons of different racial groups in carrying out their functions. The general duty is supported by specific duties, which are only enforceable by the Equality and Human Rights Commission.

Sexual orientation discrimination

Sexual orientation is defined under the EqA as a person’s sexual orientation towards:

  • persons of the same sex
  • persons of the opposite sex
  • persons of either sex.

Therefore, providing legal protection for gay men, lesbians, bisexuals and

A sexual orientation is simply an orientation towards persons of the same or opposite sex, or both sexes. The definition does not include particular sexual practices, nor preferences for particular types of sexual activity, such as sadomasochism or bestiality. Nor would it appear to cover celibacy.

Discrimination against transsexuals is not covered by sexual orientation discrimination but under gender reassignment discrimination.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

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