What is a Protected Characteristic?

Joy Drummond
Partner, Employment Law Solicitor

There are 9 “protected characteristics” within the Equality Act 2010 which make it unlawful to discriminate against, harass or victimise an employee on the grounds of:

  • Age
  • Disability
  • Gender reassignment (i.e. someone who is proposing to undergo, has undergone or is undergoing gender reassignment)
  • Marriage and civil partnership status
  • Being pregnant or on maternity leave
  • Race, including nationality, colour and ethnic origin
  • Religion or belief (including philosophical beliefs and reference to a “lack of belief”)
  • Sex
  • Sexual orientation

The definition of employee under the Equality Act 2010 includes all employees and workers, including trainees, and apprentices. Contract workers and business partners are also protected under the Act.

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Discrimination in the Workplace

Discrimination at work due to any of the above protected characteristics can take several forms.

Direct discrimination occurs when a person (the claimant) with a protected characteristic is treated less favourably than others by their employer (the respondent). This is determined by considering whether the employer treated the claimant “less favourably” than they would treat a comparator because of a protected characteristic.

The burden of proof is initially on the claimant to prove facts from which the Employment Tribunal could conclude, in the absence of any other explanation that the Respondent has discriminated against the claimant. If the claimant can prove that, the burden of proof then shifts to the respondent to show there was an alternative non-discriminatory explanation for the conduct or treatment.

Even if there is no direct discrimination a person may have a claim for indirect discrimination. This is when a provision, criterion or practice (PCP) is applied to those without the protected characteristic as well as those with the claimant’s protected characteristic but the PCP puts a person with a protected characteristic at a particular disadvantage.

The onus is initially on the claimant to prove that the PCP particularly disadvantages those with their protected characteristic as a group and that they themselves have been unfavourably treated due to the protected characteristic. It is then for the respondent to prove that the provision, criteria or practice was a “proportionate means of achieving a legitimate aim”, which is a full defence to the claim.

An employee may also make a claim for harassment if they have been on the receiving end of unwanted conduct related to a relevant protected characteristic, excluding pregnancy and marriage and civil partnership (for which other claims may apply).

The conduct must also have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This could include unwanted sexual advances or jokes relating to their race, gender and sexual orientation.) There is also a specific claim for unwanted conduct of a sexual nature or if an employee is treated less favourably because they turned down conduct of a sexual nature.

Finally, a member of staff may have a claim for victimisation. Under the Equality Act victimisation has a specific meaning. It is when a claimant is treated unfairly because they have done a “protected act”. A protected act is an act that relates to bringing legal proceedings, giving evidence or information in connection with proceedings or making an allegation that a person has breached the Equality Act 2010 or doing anything else for the purposes of or in connection with the Equality Act.

Failure to Make Reasonable Adjustments

Under the Equality Act 2010 employers are required to make reasonable adjustments to their policies and practices and physical features which put disabled employees at a substantial disadvantages at work.

What the Employment Tribunal considers to be a ‘reasonable’ step depends on the practical result in the particular case. Relevant factors include:

  • Is the adjustment practical?
  • Will the adjustment have an adverse impact on the health and safety of others?
  • Can the employer afford to make the adjustment and is financial or other assistance available to the employer to take the step?
  • How big is the employer?
  • What is the nature of the employer’s activities and how much would taking the step disrupt those activities?
  • Will the adjustment do enough to overcome the disadvantage placed on the individual in question?

Whilst employers understand the requirements, many can struggle to determine which reasonable adjustments are needed and find themselves in a costly, and embarrassing Employment Tribunal which could be avoided by taking legal advice at an early stage.

Reasonable adjustments can include:

  • Recognising things like social anxiety disorders and making adjustments to how and with whom a person may work
  • Installing a ramp for accessibility in the workplace for wheelchair users
  • Offering employees training opportunities, recreation and refreshment facilities
  • Allowing employees who become disabled to make a phased return to work
  • Enable more flexible working hours
  • Allowing a disabled person to work on a ground floor level, or somewhere that is accessible for them

Failure to comply with the duty amounts to discrimination on the grounds of disability. It is one of the most common types of disability discrimination.

Disability Discrimination

Direct disability discrimination is rare and indirect disability discrimination can be hard to prove so, uniquely in the case of the protected characteristic of disability, a claimant can claim discrimination arising from disability.

This is where a claimant is treated unfavourably by their employer because of something arising in consequence of the claimant’s disability. The employer has a defence if he can show that the treatment is a “proportionate means of achieving a legitimate aim” or if the employer did not know about the disability. The advantage is that the claimant does not have to rely on a comparator or show group disadvantage.

If You Have Experienced Discrimination at Work

There are several steps you can take if you believe you have been discriminated against in the workplace because of a protected characteristic.

Firstly, you can either complain directly to the person responsible or someone within your organisation, such as your line manager or HR manager. You may also be able to go through your company’s formal grievance process to seek a resolution.

Discussing the matter and trying to solve it informally is strongly recommended before you take your grievance further and seek the help of a third party, such as your trade union representative, Citizens Advice or the Advisory, Conciliation and Arbitration Service (ACAS).

If you wish to pursue a claim through an Employment Tribunal, you must first have submitted an ACAS early conciliation form with your employer within three months of when the act or acts of discrimination took place.

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