Last reviewed 23 May 2019

Amanda Beattie from Croner, explores the importance of business compliance, as well as the implications of discriminating against an employee. 

There has been various legislation enacted in the UK in the past, to protect individuals from discrimination in the workplace. From 1 October 2010, the Equality Act 2010 consolidated all the previous discrimination laws (Sex Discrimination Act 1975, Equal Pay Act 1970, Race Relations Act 1976, Disability Discrimination Act 1995, Employment Equality (Religion or Belief) Regulations 2003, Employment Equality (Sexual Orientation) Regulations 2003 and Employment Equality (Age) Regulations 2006), which were repealed. Most of the differences and discrepancies inherent in the previous legislation were removed. The employment provisions of the Equality Act apply to England, Wales and Scotland but not to Northern Ireland.

Protected characteristics

What is a protected characteristic? In the UK, everyone has the right to protection from various prejudices. 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. It is worth noting, while this legislation does not offer protection for revealing a protected characteristic, it is still unlawful to treat an employee differently after revealing one.

The nine protected characteristics

The Equality Act 2010 protects nine characteristics:

  • age

  • disability

  • gender reassignment

  • marriage and civil partnership

  • pregnancy and maternity

  • race

  • religion or belief

  • sex

  • sexual orientation. 

Age

Employers cannot discriminate against employees, no matter what their age. Age discrimination is either direct or indirect and it involves unfair or unfavourable treatment of staff members because of their age. It is important to remember that, in situations where people fall into the same age range, they also 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 employees (or vice versa).

  • Dismissing staff members on the basis of their age.

  • Imposing restrictions on jobs that target a particular age group.

Disability

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 Act provides a definition of disability, the issue is more complex than the Act initially states.

While some impairments are immediate and identifiable, it can be difficult to know whether some disabilities qualify. For example, is autism a protected characteristic? In this instance yes, it fits the criteria as it is a mental impairment. The level of support or adjustments an affected employee needs depends on where they sit on the spectrum. This is the same for other issues such as dyslexia and depression.

Examples of impairments considered as disabilities from diagnosis include:

  • Cancer

  • Multiple sclerosis (MS)

  • Any HIV infection.

The Equality Act 2010 highlights employers’ duty of care towards disabled employees. Under the legislation, employers must make reasonable adjustments to remove barriers caused by a disability, where this is reasonably practicable. Employers must also bear in mind that there is a special provision for disability under s.15 of the Equality Act which protects employees against discrimination for something arising as a consequence of their disability.

Gender reassignment

Gender reassignment is defined as the process of changing from one sexual category to another. According to the Equality Act 2010, employers must not discriminate against a member of staff if they believe they are transsexual.

It is important for employers to remember that individuals are not required to undergo surgery or treatment to change their gender. Individuals can still receive protection against discrimination if they have reassigned their identity without any medical processes.

Employers should keep in mind that treating a transsexual employee differently is not necessarily unlawful. For example, taking constructive steps to include transsexual employees in organisational activities where they are unrepresented. The key to this is that they do not experience a detriment because of an employer’s decision to treat them differently.

Examples of gender reassignment discrimination include:

  • Reassigning an employee to an alternative role to remove them from public view.

  • Unfair treatment of sickness absence 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

Marriage or civil partnership discrimination is where an employee is treated differently on account of their relationship status. This can be either between a man and a woman or between members of the same sex.

It is worth employers remembering that employees are not protected under this characteristic if they are:

  • 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.

  • Dismissing or reducing the working hours of an employee after marriage.

  • 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 the workplace, this spans from 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.

  • Victimisation — this involves treating an employee unfairly because they have 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 is worth noting, when making a decision on an employee’s position within a company that it is 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 are treated differently because of this and there are two types — direct and indirect.

Examples include:

  • Direct — rejecting a job application from a candidate of a different nationality not based on skills but because it is believed that they will not fit in with existing staff.

  • Indirect — having policies or procedures that while they apply to all workers, only put a person or group of people of the same race at a disadvantage. For example, during the recruitment process, it is unlawful to require all applicants to have a certain qualification which is only available to people in the UK as that could discriminate against applicants from abroad.

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

Religion or belief

Religion or belief covers individuals or groups with certain religious or philosophical beliefs. 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. Belief must be a genuine belief and not an opinion. To be considered as a genuine belief, 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 3pm on Fridays, knowing that Muslim employees will be attending prayers at that time. Employers can avoid discrimination claims by objectively justifying the reason for scheduling the meeting for that time.

It is 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, employers must not discriminate against an employee:

  • of a particular sex

  • who is believed to be of the opposite sex (discrimination by perception).

  • who is associated with someone of a specific sex (discrimination by association).

It is worth noting that the law does not 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 which would not apply to 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 it is “better suited for women”

  • not promoting women due to concerns about their plans for motherhood.

Sexual orientation

The Act protects individuals from discrimination because of their sexual preferences. This includes any employees who are:

  • heterosexual, asexual, gay, lesbian or bisexual

  • believed to be of a particular sexual orientation (discrimination by perception)

  • connected to someone who has a particular sexual orientation (discrimination by association).

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.

Discrimination within the workplace

To prevent allegations of discrimination in the workplace, it is good practice to introduce policies that reflect the company’s values. Company policies should highlight your stance on issues relating to all forms of discrimination. They should also inform employees of what is acceptable conduct and what is expected of them within the workplace. Finally, the policies should include the procedure for handling complaints — including arbitration and, if needs be, the termination of a contract.

It is important to train managers and employees to better understand the nine protected characteristics and their roles in ensuring equality and dignity at work. Employers should also have a clear and reliable method for reporting grievances to help alleviate the impact on employee morale and productivity.

Further advice

For professional advice on dealing with any HR matters, speak to a qualified consultant on 0844 561 8149.