What are Protected Characteristics?

Amanda Beattie

Amanda Beattie

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21 May 2019

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There have been various legislations in the UK protecting individuals from discrimination in the workplace.

However, the Equality Act 2010 replaced most of these laws—including the Race Relations Act of 1976 and the Disability Discrimination Act of 1995.

One of the main changes to legislation relates to groups protected from detrimental treatment thanks to the Act.

This article explores the importance of business compliance, as well as the implications of discriminating against an employee.

 

Protected characteristics at work

First of all, what is a protected characteristic? In the UK, everyone has the right to defence from various prejudices.

And the law is specific that businesses maintain diversity and good moral conduct.

According to the Equality Act 2010, protected characteristics are aspects of a person’s identity that make them who they are.

It’s worth noting, while this legislation doesn’t offer protection for revealing a protected characteristic, it’s still unlawful to treat an employee differently after revealing one.

 

The 9 protected characteristics

But how many characteristics does the Equality Act 2010 protect? The law defines nine. Let’s take a closer look at what they are:

  1. Age
  2. Disability
  3. Gender reassignment.
  4. Marriage and civil partnership.
  5. Pregnancy and maternity.
  6. Race
  7. Religion or belief.
  8. Sex
  9. Sexual orientation.

With the above in mind, below we’ll go into greater detail about what each point means and how it applies to your business.

 

Age

You can’t discriminate against employees, no matter what their generation is.

Age discrimination is either direct or indirect. It involves unfair or unfavourable treatment of staff members due to how old they are, or the peer they’re associated with.

It’s important to remember that in situations where people fall into the same age range, they share the “age” protected characteristic.

Examples of age discrimination include:

  • Using inappropriate language to describe staff members in a specific age group.
  • Treating younger employees differently from older personnel (or vice versa).
  • Dismissing staff members on the basis of how old they are.
  • Imposing restrictions on jobs that target a particular age group.

 

Disability

Is disability a protected characteristic? Yes. The Equality Act 2010 defines a disabled person as someone with a physical or mental injury.

It must be substantial or long-term (likely to last more than 12 months) and affect their ability to conduct day-to-day activities.

Although the regulation provides a definition of disability, the issue is more complex than the Act initially clarifies.

While some impairments are immediate and identifiable, it can be difficult to work out if some disabilities qualify.

For example, is autism a protected characteristic? In this instance yes, it fits the criteria as it’s a mental impairment. It’s the same for other issues such as dyslexia and depression.

However, the level of support or adjustments an affected employee needs depends on where they sit on the spectrum.

Examples of impairments considered as disabilities from diagnoses include:

  • Cancer.
  • Multiple sclerosis (MS).
  • Any HIV infection.

The Equality Act 2010 highlights your duty of care towards disabled employees.

Under the legislation, you must make reasonable adjustments to remove barriers caused by a disability.

There’s also a special provision for disability under section 15 of the Equality Act. It protects employees against discrimination for something arising as a consequence of their disability.

 

Gender reassignment

This is the process of changing from one sexual category to another.

According to the Equality Act 2010, you mustn’t discriminate against a member of staff if you think they’re transsexual (or know someone who is).

It’s important to remember individuals aren’t required to undergo surgery or treatment to change their gender. They’ll still receive discrimination protection if they’ve reassigned their identity without any medical processes.

However, keep in mind that treating a transsexual employee differently isn’t necessarily unlawful. For example, taking constructive steps to include your transsexual employees in organisational activities in which they aren’t represented.

However, the key is they don’t experience a detriment because of your decision to treat them differently.

Examples of gender reassignment discrimination include:

  • Reassigning an employee to an alternate role to remove them from public view.
  • Unfair treatment of sick days compared to other employees.
  • Having policies in place that put your transsexual employees at a disadvantage.
  • Comments that offend or degrade.

Marriage or civil partnership

This is treating an employee differently on account of their relationship status. This can be either between a man and a woman or between members of the same sex.

Employees aren’t protected under this characteristic if they’re:

  • Living with their partner but not married or in a civil relationship.
  • Engaged but not married yet.
  • Divorced or if they’ve dissolved their civil partnership.

Examples of discrimination under this characteristic include:

  • Having policies in place that put married employees (or those in a civil relationship) at a disadvantage—this may be different if you can show a good reason otherwise.
  • Dismissing or reducing the working hours of an employee after marriage as you think they’ll need to spend more time with their family (unless requested).
  • Treating an employee differently for supporting a colleague facing discrimination for their marriage or civil partnership. This particular type of discrimination is ‘victimisation’.

 

Pregnancy and maternity

In a work setting, this spans from the period of pregnancy through to birth and the period of maternity leave (the protected period).

Discrimination in this regard involves treating a woman differently for being pregnant or on maternity leave. The Act defines two types of pregnancy and maternity discrimination:

  • Unfavourable treatment: This is putting employees or job applicants at a disadvantage because of pregnancy or maternity. For example, you can’t subject them to unfair treatment. Your policies and procedures shouldn’t put them at a disadvantage and they shouldn’t experience unwanted behaviour because of their pregnancy or maternity leave requirements.
  • Victimisation: This involves treating an employee unfairly because they’ve made, or supported, an allegation (or complaint) of discrimination. It also relates to employees giving evidence relating to a complaint from another staff member.

It’s worth noting, when making a decision on an employee’s position in your company, it’s unlawful to take into account periods where they were off sick due to pregnancy-related illnesses.

 

Race

The legislation protects groups of employees defined by their race, colour or nationality. Discrimination occurs when they’re treated differently because of this. Examples include:

  • Direct: For example, rejecting a job application from a candidate of a different nationality not based on skills but because you think they won’t fit in with your staff.
  • Indirect: Having policies or procedures that while it applies to all workers, only puts a person or group of people of the same race at a disadvantage. For example, during the recruitment process, it’s unlawful to require all applicants to have a certain qualification that’s only available to people in the UK. That discriminates against applicants from other countries.

In some cases, you can justify indirect discrimination providing you give a justifiable business reason.

 

Religion or belief

Covers individuals or groups with certain religious or philosophical beliefs.

Your employees have a legal protection from discrimination because of their religion or belief (or the lack thereof).

According to the Act, a religion must have a clear structure and belief system. And for the purpose of the Act, a belief must be a genuine belief and not an opinion. To consider a belief genuine, it has to be a weighty and substantial aspect of human life.

Examples of religion or belief discrimination include:

  • Refusing to hire an individual or a particular group of people because of their religion or philosophical beliefs.
  • Dismissing a member of staff because of their belief or religion.
  • A form of indirect discrimination could be enforcing inconvenient working hours. For example, setting a meeting at 3 pm on Fridays when you know some of your employees go to the mosque. You can avoid discrimination claims by objectively justifying your reason for scheduling the meeting for that time.

It’s important to be consistent when dealing with religious holiday requests to avoid allegations of discrimination.

 

Sex

This involves the unfair treatment of an employee on the basis of being either a man or woman.  

The Equality Act 2010 protects individuals from prejudice based on their sex. According to the law, you mustn’t discriminate against an employee:

  • Of a particular sex.
  • That you think may be of the opposite sex (discrimination by perception).
  • Or that’s associated with someone of a specific sex.

It’s also worth noting that the law doesn’t allow for positive discrimination in favour or either sex as it does in other instances such as disability.

Examples of prejudice at work include:

  • Asking female job applicants questions you wouldn’t ask male applicants.
  • Promoting only women (or men) for specific roles due to previous discrimination when applying for that role.
  • Rejecting a male candidate’s application for a sales role within a cosmetic company because you think he wouldn't fit in with your all female staff. 
  • Not promoting women due to concerns about their plans for motherhood.

Sexual orientation

The act protects individuals from discrimination on the grounds of their sexual preferences. That includes any employee who is:

  • Bisexual.
  • Gay.
  • Heterosexual.
  • Asexual.

Examples of sexual orientation discrimination include:

  • Not promoting a staff member solely based on their sexual preference.
  • Maintaining policies or business practices that put an employee of the same sexual identity at a disadvantage.
  • Harassing, degrading, intimidating, offending or general unwanted conduct relating to their sexual identity.

What happens if your business discriminates

To prevent allegations of discrimination in the workplace, it's good practice to introduce policies that reflect your values.

Policies should highlight your stance on issues relating to all forms of discrimination. It should also inform employees of what’s acceptable conduct and what’s expected of them when they’re in your workplace.

Finally, the policy should also include the procedure for handling complaints—including arbitration and if needs be the termination of a contract.

It’s important to train managers and employees to better understand the nine protected characteristics and their roles in ensuring equality and dignity at work.

You should also have a clear and reliable method of reporting grievances to help alleviate the impact on employee morale and productivity.

 

Get expert support

For help with this complex issue or any other area in employment law, call us for immediate assistance on 0808 145 3379.

About the Author

Amanda Beattie

Amanda represents corporate clients and large public bodies, including complex discrimination and whistleblowing claims. Amanda also drafts and delivers bespoke training regarding all aspects of employment law, including ‘mock tribunal’ events; in addition she also frequently drafts employment law articles for various publications for Croner and their clients.

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