Protected Characteristics, Discrimination & The Equality Act

emily gordon brown
Emily Gordon BrownLegal Assessment Specialist @ Lawhive
Updated on 21st November 2023

In UK, under anti-discrimination employment laws, it’s illegal to discriminate against someone at work, and various other settings if someone has one of the 9 protected characteristics.

protected-characteristics-discrimination-and-the-equality-act

In this guide we’ll explore what protected characteristics are and the different forms of discrimination people might face in relation to them. We’ll offer actionable strategies for dealing with discrimination at work and clarify your rights under the law.

We will cover:

  • What protected characteristics are

  • Explain the 9 protected characteristics

  • Outline what the Equality Act says

  • Highlight the different types of discrimination

  • Strategies you can use if you’re being discriminated against

What are protected characteristics?

Protected characteristics are parts of someone’s personality that make up who they are.

There are 9 protected characteristics which are illegal to discriminate against, and companies and institutions that are found to have done so can be fined.

What are the 9 protected characteristics?

It is illegal to discriminate against anyone for the 9 protected characteristics:

Age

Employers might discriminate against a certain age group or range, for instance 18-31 year olds. 

Age discrimination can apply to the young and old. As a younger person, you might be told you don’t have the experience for the role you’ve applied to or a promotion - this can often be used as an excuse to discriminate against hiring younger people.

Older people may not be given work because companies fear they are nearing retirement age, or that they might not be able to keep up with the latest changes in the industry, especially technological.

If you feel you have the experience and aren’t being given the chance to prove it, you might be being discriminated against. 

Pregnancy or maternity leave

Women might be discriminated against if they tell their employer that they are pregnant or planning to take maternity leave. The same can happen to job applicants who disclose this information. However, you are protected from being treated unfairly under the law.

This protected characteristic also covers anyone looking after a very young child. This legislation protects your decision to apply for maternity leave, a new role, promotion and training opportunities whilst pregnant.

Organisations should carry out a risk assessment to ensure that you can carry out your duties while pregnant. Any physical work may adjusted and flexible working arrangements should be offered where possible, as well as for returning mums coming back to work, such as suitable breastfeeding facilities.

Disability

Many people with a disability are aware of it and have a supportive employer that makes adjustments for them. However, some people with a disability aren’t aware they have one, choose to identify differently, or are concerned about telling their employer that they have a disability for fear of facing disability discrimination

A definition of disability from the Equality Act 2010, is:

Any physical or mental impairment that has a substantial and long-term effect on a person's ability to carry out normal day to day activities”.

As with the other 9 characteristics, disability is protected under this law.

You might have noticed the qualifier ‘long-term’ in that definition, which relates to at least one year. 

Normal day-to-day activities generally includes things such as ‘opening a door’ or ‘running for the bus’. It now includes the difficulty of focusing for long periods of time to include neurodiversity conditions, including ADHD, autism and mood disorders.

Here, positive discrimination can be allowed under the law. This includes making reasonable adjustments in the workplace and for applicants. Employers should remember that positive discrimination only applies to people with disabilities.

Gender reassignment

Gender reassignment is when individuals transition from one gender to another. This process is often associated with transgender individuals, who may identify with a gender different from the one assigned to them at birth. Gender reassignment can involve various aspects, including social, legal, and medical changes.

Reassignment can also include modifying your physical appearance, clothing and other characteristics in order to feel yourself. 

It is a personal choice and not a medical procedure. There is no obligation to have medical treatment in order to be protected under the law as a transgender person. 

Gender reassignment discrimination is illegal and is when someone is treated unfairly because they are transgender.

Married or civil partnership status

Under the law, marriage and civil partnership is a relationship between any two people. Providing this partnership is considered a marriage in legal terms in the UK, it doesn’t matter where the status was originated

However currently, despite cohabiting couples being the fastest rising type of relationship status, they are not afforded the same protections under the law from discrimination.

If you feel you are being discriminated against as a cohabiting couple, you may want to seek legal support to understand your rights.

We recently questioned whether the law on cohabitation should be changed.

Race 

Race discrimination is when someone is discriminated against for their race, colour, nationality, ethnic or national origin.

People with those shared characteristics are considered part of the same racial group, however someone can belong to more than one racial group.

Positive race discrimination is allowed in some countries, for instance South Africa where racial divisions through apartheid in the past led to inequality. A positive discrimination policy is followed by the South African cricket team, which uses a racial quota for selection of their women’s and men’s international cricket teams.

Religion or belief

Discrimination against someone’s religion or belief is when they are treated unfairly because of the religion they follow or the beliefs they hold.

Belief includes religious and philosophical, as well as a lack of belief such as agnosticism or atheism.

Sex

Sex discrimination is when someone is discriminated against because they are male or female. This is not to be confused with gender reassignment, which is a protected characteristic of its own.

Sexual orientation

Whatever your sexual orientation, you are protected from discrimination under the law. This applies across the spectrum of LGBTQ+ and heterosexual individuals.

Where do protected characteristics apply?

The legal protections available to those with one or more of the characteristics applies throughout society, including:

  • At work

  • In education

  • As a consumer

  • When using public services

  • When buying or renting property

  • As a member or guest of a private club or association

Equality Act Overview

We briefly mentioned that protected characteristics are given legal support under the Equality Act 2010, however we’ve yet to go into what the laws says, so let’s dive into it.

In its creation, the Equality Act joined separate anti-discrimination laws into one overarching act: this means that discrimination, harassment or victimisation are all covered by this single act.

One key element included in the act not explored yet is protection by association. This can come into effect when someone is discriminated against because a person they are close to has a protected characteristic. 

Employers can turn to the ACAS website to understand discrimination at work and what their duties are in different circumstances. 

Positive action for people with protected characteristics

If you want to help someone with a protected characteristic, this is known as positive action.

You can take it when someone:

  • Is discriminated against and unfairly disadvantaged

  • Has needs that aren’t addressed by their employer

  • Is underrepresented in a position, or type of job role 

Positive action is when an employer takes steps to address discrimination based on someone’s protected characteristic.

The best place to start if you really want to help is by talking to your people about their experience and asking them what you can do to change things for the better.

Remember not to get positive action confused with positive discrimination, which we explored earlier. 

Types of discrimination

There are various forms discrimination can take. 

The most common forms of discrimination are:

  • Harassment

  • Bullying 

  • Victimisation

  • Being overlooked for promotion, training or employment

  • Unfair dismissal or constructive dismissal

  • Lack of necessary adjustments to the workplace

  • Different rules for different groups

Protected characteristics and discrimination at work

We’ve summarised some examples of discrimination at work, however you may want to read our guide on signs of discrimination at work for a more complete picture and real life scenarios.

In terms of marriage and civil partnership status, this characteristic typically becomes relevant when issues of pension rights and rights to salary claims from partners are requested. Any function at work or private space where only married couples are invited to for instance could be considered discrimination. And, not allowing civil partners to disclose their relationship at work would be an example of exclusion, which would have been the case under the US armies’ infamous 'Don’t Ask, Don’t Tell policy'.

When considering race discrimination at work, it’s important to examine the issue of representation. Are there people from different groups in positions of power? Can you see someone like yourself in a leadership position at the company you work for, whether it’s your boss, or a member of the senior leadership team?

If not, you may struggle to see how you can achieve your ambitions in your career, and your employer could be discriminating on a racial basis.

What can you do if you’re facing discrimination

Before doing anything else, it's important to be aware of your rights and take appropriate actions to seek a resolution. First, if you feel comfortable doing so, you should talk with your employer about what you’ve been facing.

They may not be aware of the impact of their actions, and open communication could lead to resolution.

If they want to help and treat you fairly, they’ll ask for your opinion before taking positive action to eliminate discrimination that you or others from your protected characteristic might face.

If speaking directly to the person involved does not resolve the issue, or if you are uncomfortable doing so, you can escalate the matter by reporting it to your human resources (HR) department. Provide them with documented evidence of the discrimination. You can also get support from Citizens Advice or your trade union rep.

If informal methods do not resolve the issue, you may need to file a formal grievance with your employer. Follow your employer's grievance procedure, which should be outlined in their policies.

Finally, if internal procedures do not lead to resolution, you can contact the Advisory, Conciliation, and Arbitration Service (ACAS) to explore early conciliation. If resolution is not reached, you may be able to file a claim with an employment tribunal.

Have a look at our guide on what to do when in a workplace dispute for more guidance and support.

Remember, it's crucial to act as quickly as possible, as there are time limits for bringing discrimination claims. Seeking advice from professionals can help you navigate the process and understand the options available to you.

If you can't afford legal support to argue your case, you might be able to get legal aid to help support you with the costs.

For help and advice on discrimination in the workplace, get a free case assessment from our team and a fixed fee quote for specialist help from our expert solicitors. Contact us today to get started.

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