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Marjon Law - Specialist Employment Lawyers

Marc Jones - Leading Employment Law Solicitor - Marjon Law - Specialist Employment Lawyers

DISCRIMINATION -

PROTECTED CHARACTERISTICS

A guide on discrimination - protected disclosures - from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you would like urgent advice on discrimination, please contact us as soon as possible.

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 an 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 a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.

Age discrimination can be:

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. Approximately 90% of disabilities are not clearly visible.

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.

Substantial adverse effect means more than trivial and can include the time taken, or the way in which, an activity is carried out.

Long-term means it has lasted or is likely to last 12 months.

Normal day-to-day activities are things people do on a regular or daily basis, such as: shopping; reading and writing; having a conversation or using the telephone; watching television; getting washed and dressed; preparing and eating food;, carrying out household tasks; walking and travelling by various forms of transport; and taking part in social activities.

Such activities can include general work-related activities, and study and education-related activities, such as: interacting with colleagues; following instructions; using a computer; driving; carrying out interviews; preparing written documents; and keeping to a timetable or a shift pattern. They now also include: a person’s ability to participate fully and effectively in working life on an equal basis with other workers.

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 includes:

Asperger’s Syndrome
Autism Spectrum Disorder
Attention Deficit Hyperactivity Disorder
Dyslexia
Dyspraxia
Obsessive Compulsive Disorder
Post-Traumatic Stress Disorder
Diabetes
Epilepsy
Depression
other neurodiverse or mental health conditions.

Disability discrimination can be:

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.

A 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.

Gender reassignment discrimination can be:

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.

Marriage and civil partnership discrimination can be:

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.

Pregnancy and maternity discrimination can be:

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.

Colour means a person's skin.

Nationality is basically citizenship, whereas national origin is a connection to a country or nation through birth.

National origin can be the same as nationality or different. Ethnic origin is a connection to an ethnic group, which is defined as a group of people who share the same history and cultural traditions. Irish Travellers, Jewish people, Sikhs and Romany Gypsies are all examples of ethnic groups.

Therefore, reference to a person who is of 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 prohibits 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.

Race discrimination can be:

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.

Religion or belief discrimination can be:

Sex discrimination

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

Sex discrimination can be:

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 and bisexuals.

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.

Sexual orientation discrimination can be:

Unconscious bias

Unconscious biases are preferences and unsupported beliefs about members of social groups that form outside of our conscious awareness. Such biases can be positive eg having an affinity for people from one’s own ethnic background, or negative eg believing that women are less suited for leadership roles.

Unconscious bias has been found to influence decisions in recruitment, promotion and performance management, and can result in discriminatory behaviour and a less diverse workforce. For example, in multiple studies in which employers with job openings were sent one CV bearing a “white” sounding name as well as a nearly identical CV but with a name that suggested the applicant was an ethnic minority, the employers were significantly less likely to invite the latter applicant for an interview.

Unconscious bias applies to all protected characteristics.

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.

Why choose Marjon Law for workplace discrimination advice?

We have been involved directly and indirectly with hundreds of employment tribunal claims for clients for over 20 years, many of which involved workplace discrimination.

As specialist employment lawyers, our clients' interests are paramount to us.

We ensure that all our clients receive the best advice possible.

We will advise on workplace discrimination and any subsequent employment tribunal claim.