In our latest HR Coffee Break Briefing webinar, Employment Expert & Associate Chris Dobbs looked at equality and discrimination law.
It’s the first of two sessions on the topic, with this one being focused on the protected characteristics involved in such claims.
This is the summary of that webinar. You can watch it back below, or read on for the summary.
What is a Protected Characteristic?
Protected Characteristics are a set of ‘traits’ that an individual might have which the Equality Act 2010 protects from discriminatory behaviour. They are as follows:
- Age
- Disability
- Gender reassignment
- Marriage or civil partnership
- Race
- Religion or belief
- Sex
- Sexual orientation
Pregnancy/maternity is not technically one of the protected characteristics set out at the start of the legislation. There are various provisions later in the Equality Act that, for all intents and purposes, make it a protected characteristic – but it’s not one that sits in the list.
I’m going to break down each of these characteristics now, discussing how they are protected and to what extent.
Age
Age is described within the Equality Act as an individual ‘in an age group’. A wide, not so helpful, definition that essentially means that someone can be sacked unfairly for being ‘too young’ or ‘too old’.
Interestingly, age is the only protected characteristic where, if you directly discriminate someone as a result of it, it can be justified. Think about the police, for example, who have a maximum age for recruit.
Related: Recruitment - The legal implications that employers need to know
Related: Can a short redundancy be considered age discrimination?
Disability
I interpret the definition of disability in the Act as a mental or physical impairment which has a long-term and substantial impact on their ability to carry out day-to-day activities. It is a relatively low threshold compared to other situations where you may need to define disability.
The test, in any case, is about what an individual can’t do, not what they can do.
Blindness, cancer, HIV and MS are automatically qualifying conditions. Other conditions are often subject to the impact they have on an individual’s day to day life, such as OCD or perhaps arthritis.
Alcoholism and drug dependence do not meet the definition and are expressly excluded, quite often in these cases, there is an underlying condition (e.g. depression, anxiety) that may contribute to or be causing such behaviour – something you need to be aware of as that condition could be a disability.
Related: Disability Discrimination in Applications - An Employer's View
Gender Reassignment
An individual is protected if they are proposing to undergo, is undergoing or has undergone a process for the purpose of reassigning their sex.
This ‘process’ need not be medical in nature or under medical supervision, according to a couple of recent cases – an example of which being Taylor v Jaguar Land Rover.
Yet, this definition of ‘process’ may change, there has yet to be an appeal in that case, and another tribunal may reach a different decision.
Related: Can Using a Swear Word Be Discriminatory on the Basis of Sex or Gender Reassignment?
Marriage and Civil Partnership
This is a characteristic that doesn’t come up that often, but when it does the test on whether there has been discrimination is whether an action has been taken, such as a dismissal, because of the marriage itself.
That’s because this characteristic is designed to protect those in a marriage or civil partnership and is not for cases of discrimination arising from who they marry or are in a partnership with.
It also doesn’t include single people, those engaged to be married, cohabiting couples, divorcees, people whose civil partnership has been dissolved.
Race
Race includes:
- Colour
- Nationality
- Ethnic Origin
- National Origin
Immigration status does not automatically trigger race, as it is not itself a race/colour/nationality, so it can be considered distinct. However, it may trigger the protected characteristic as a component of the claim.
Religion or Belief
Any known/established religion, or lack thereof, or philosophical belief or lack thereof, is a protected characteristic. Meaning atheism, for example, is also covered.
A belief must satisfy various criteria to qualify and has previously included ethical veganism and political views.
To decide whether someone has a protected philosophical belief, a tribunal will test that the belief:
- Is genuinely held,
- Isn’t just an opinion/viewpoint,
- Relates to a weighty and substantial aspect of human life/behaviour,
- Has a certain level of cogency, seriousness, cohesion and importance,
- Is worthy of respect in a democratic society and does not conflict with fundamental rights of others.
Sex
Discriminating against someone for being a man or a woman. The majority of claims that seem to arise in this situation are either equal pay claims, and the other increasingly common sex-related claim pertains to the menopause.
Equal pay claims are brought separately under a specific provision. The Equality Act requires more than just equal pay terms; there should be ‘equality of terms’ – so access to perks in the workplace, promotion opportunities, benefits etc.
The tribunal has broadly suggested that the menopause is a women specific issue; therefore it can be bought as a sex discrimination claim.
Sexual Orientation
Sexual orientation is currently, under the Equality Act’s definition, an individual’s attraction to people of the same sex, opposite sex or both – therefore protecting heterosexual, homosexual and bisexual people.
It does include perceived or assumed orientation, for example a straight man who someone is perceived to be gay can bring a claim if he is subjected to homophobic discrimination.
Overlapping Claims
What happens if two or more protected characteristics are triggered by two people? For example, if someone’s expression of their gender or orientation with someone else’s religious or ethical beliefs.
There isn’t a clear answer, as the Equality Act doesn’t have a hierarchy. These protected characteristics are all treated as equal value.
As an employer, if there are two conflicting opinions, you are legally obliged to take both protected characteristics into account. In such a case, I would recommend taking specific legal advice as it’s a really tough situation to be in.
Related: The problem with the statutory defence to discrimination claims
Upcoming Events
Don’t worry if you missed this webinar, there’s still plenty more to come over the next 12 months as our employment team talk you through the employee lifecycle.
The next one is taking place on Wednesday 7th February, where Chris will be looking at the second part of discrimination claims – unlawful conduct.
You can sign up to our free newsletter to receive invitations to upcoming webinars and events here.
You can also find recordings, slides and summaries of previous webinars here.
Employment & HR Solicitors
Our bright Employment Team has a vast experience in advising employers in cases of all kinds.
We’d be happy to provide tailored advice and assist you in mitigating, preventing and fighting claims, such as unfair dismissal.
You can call us on 01202 499255, or fill out the form at the top of this page, for a free initial appointment.
We also offer tailored courses for new and experienced employers and HR professionals alike, which may be useful to you.
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