Protected Characteristics

The Act protects people of all ages and makes it unlawful to discriminate against an individual on the basis of his or her age.  However, different treatment because of age is not unlawful if it is a proportionate means of meeting a legitimate aim.  Age is the only protected characteristic where employers are allowed to justify any aspect of direct discrimination.

Under this legislation there is a specific change about the way in which employers have to handle retirement.  

Remember that age discrimination can apply to people being younger as well as older than any stereotype.  It would be reasonable to establish the depth of an individual’s experience in relation to being satisfied that they can demonstrate their capability against the competencies.  However, simply to relate experience to amount of time in a role could amount to age discrimination.

Under the Act, a person has a disability if they have 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.

It is possible to reply upon something related to this disability for making a decision if it can be shown that it is a reasonable means of fulfilling a role.  However, the Act places a duty on employers to make “reasonable adjustments” for their staff in order to overcome any such disadvantage.  A common example of this is where Call Centre management provide larger size computer screens in order to help visually impaired staff use their computers effectively.  It is only under the circumstances where the employer can show that he or she has considered reasonable adjustments that they can use the effects of the individual’s disability to justify a decision which is to the detriment of the person with the disability.

This characteristic provides protection for transsexual people, and is defined as applying if a “person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other aspects of sex”.

From this definition it is clear that it would be discrimination to treat transsexual people less favourably for being absent from work because they were undergoing gender reassignment than they would be treated if they were absent if they were ill or injured.  Similarly, it is clear that there is no requirement for a person to be under medical supervision to be protected – for instance, a woman who decided to live as a man but did not undergo any medical procedures would still be covered (see the definition above where it talks of “other attributes of sex”).

Discrimination also extends to protecting a worker if you treat them less favourably based on:

•Your perception of their gender reassignment status, regardless of whether or not the perception is correct.
•Any perception you may have about the way in which other people would be influenced by someone who was or had undertaken gender reassignment.

You cannot defend a direct discrimination claim by ‘justifying’ it (arguing that your actions were a proportionate means of achieving a legitimate aim.

The Act protects employees who are married or in a civil partnership against discrimination.

Note that you must also treat married employees and employees in civil partnerships in the same way.  This means that any benefit such as private healthcare that is available to the spouses of employees should also be made available to employees’ civil partners.

It can still be lawful to give benefits to employees who are married or in civil partnerships, but not to those who are unmarried or not in civil partnerships.  However, with changing practice in society, this is becoming increasingly rare and few people would suggest that it was good practice.

A woman is protected against discrimination on the grounds of pregnancy and maternity during the period of her pregnancy and any statutory maternity leave to which she is entitled.  It is likely that any discrimination related to maternity which fell outside this period would still amount to sex discrimination.

Case Study Example

Lydia is pregnant and works at a call centre.  The manager knows Lydia is pregnant but still disciplines her for taking too many toilet breaks, as the manager would for any other member of staff.  This is discrimination because of pregnancy and maternity.  This characteristic does not require comparison of treatment with other employees.

The definition of Race as a protected characteristic includes colour, nationality, ethnic or national origins.  A racial group is a group of persons defined by reference to Race and the fact that such a group may compromise two or more distinct ethnic or national groups does not prevent it from constituting a particular racial group.

Example of Indirect Race Discrimination

A policy that required all employees to be clean-shaven, as this would put Sikhs in general at a disadvantage.

Remember that indirect discrimination can only be justified if it can be shown that the policy is a “proportionate means of achieving a legitimate aim”.  If the justification here were related to food hygiene, the employer would need to establish that he or she had considered “less discriminatory” alternatives, such as hair nets etc.

The Act defines this protected characteristic as applying to people who hold any particular religious or philosophical belief.  People are also protected if they have no belief at all.

To be protected a belief must satisfy various criteria including that it is a weighty and substantial aspect of human life and behaviour.  Specific sets or denomination within a religion can be considered a protected religion.  Discrimination can occur even where both the discriminator and the recipient are of the same religion or belief.

Case Study Example

An organisation has a dress code which states that men may not wear ponytails.  This may indirectly disadvantage Hindu men, some of whom wear a Shika, (a small knotted tuft of hair worn at the back of the head, as a symbol of their belief).  Such a policy could be discriminatory if it cannot be justified.

Both men and women are protected under the Act and they have equal rights not to suffer discrimination.

Case Study Example

A female candidate at a job interview is asked about her domestic and childcare arrangements while a male candidate is not.  Subsequently, the male is appointed even though the woman is clearly the better applicant.  The presumption would be that the employer had based its decision on discriminatory assumptions about the woman´s ability to carry out the job.

The protected characteristic under the Act is “a person’s sexual orientation towards:

a) Persons of the same sex,
b) Persons of the opposite sex, or
c) Persons of either sex”

It is clear from this that the Act protects gay, lesbian, heterosexual and bi-sexual people.

Case Study

An employer allows a man whose female partner is pregnant to take annual leave so that he can go to ante-natal appointments with her. 

The employer refuses a similar request from a woman whose female partner is pregnant.  This is likely to be direct discrimination because of sexual orientation.