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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.

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.

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.

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.

Pregnancy and maternity discrimination

Discrimination because of pregnancy and maternity occurs where an employer treats a woman unfavourably:

during the protected period (ie from when pregnancy starts until it ends, including maternity leave), because of the woman's pregnancy or because of a pregnancy related illness
because the woman is on compulsory maternity leave (ie 2 weeks [or 4 weeks if you work in a factory] following the birth of her baby)
because the woman is 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).

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.

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.

Sex discrimination

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

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.

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.