The Equality Act 2010

Protected characteristic

The Act defines the following ‘protected characteristics’:

• age
• disability
• gender reassignment
• marriage and civil partnership
• race (including potentially 'caste')
• religion or belief
• sex
• sexual orientation

Protection is also extended to women on grounds of pregnancy or maternity.

Direct discrimination

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

Indirect discrimination

A discriminates against B if without objective justification A applies a general provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. For example, a practice of only offering full-time appointments may be perceived to indirectly discriminate against women who are more likely to have caring responsibilities and be unable to work full-time.

Discrimination by association

This is a form of direct discrimination where someone is discriminated against because s/he associates with another person who may have a protected characteristic (i.e. ‘because of a protected characteristic'). For example, if A treats B less favourably because B cares for an elderly relative, A could be held to be discriminating against B ‘on grounds of age’, even though B’s age is not the reason for the treatment. The Act extends discrimination by association to all the protected characteristics apart from marriage or civil partnership.

Discrimination by perception

Direct discrimination occurs where an individual is treated less favourably because s/he is perceived to have a protected characteristic (apart from marriage or civil partnership), even though s/he may not actually possess the characteristic.  

Combined or dual discrimination

Claimants may (as now) bring claims of discrimination on grounds of more than one protected characteristic. The Equality Act contains specific provision relating to dual or combined discrimination, which have yet to be enacted.

Harassment

Harassment is 'unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual'.

Harassment applies to all protected characteristics except pregnancy and maternity, and marriage and civil partnership.

Employees may complain of behaviour that they find offensive even if it is not directed at them, and complainants need not possess the relevant characteristic themselves. Employees are also protected from harassment because of perception and association.

Third party harassment

Employers are potentially liable for harassment of their employees by third parties in certain circumstances.   Liability will only arise when harassment has occurred on at least two previous occasions, and the department/division is aware that it has taken place and has not taken reasonable steps to prevent it from happening again.

Victimisation

A victimises B if A subjects B to a detriment because B does a protected act (such as raising a grievance) or A thinks B has done, or may do, a protected act. An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint.

Disability

Under the Act a person is considered disabled if s/he has a substantial and long-term mental or physical impairment that has an adverse effect on his or her ability to do any normal activities, such as using a telephone, reading a book, or using public transport.  This is a more inclusive definition, than under previous legislation.

In addition there is a protection from 'discrimination arising from a disability'. i.e. an employer cannot treat an individual unfavourably because of something arising in consequence of that individual's disability, such as poor spelling when it is, or should be, known that the person is dyslexic.  The Act may make it difficult lawfully to dismiss an employee on long-term sick leave if the absence is due to the employee's disability.  Employers may only ask questions about health after a conditional job offer has been made, so that information about disability is not a factor in selection decisions.

The obligation to make 'reasonable adjustments' for disabled employees continues.

Transgendered person

Transsexuals are protected when they propose to undergo, are undergoing, or have undergone a process for gender reassignment. Under previous legislation, transsexuals were only protected when they were under medical supervision or undergoing surgery.  Under the Equality Act 2010 there is no longer a requirement that medical intervention is on-going.

Pregnancy and Maternity

A woman is protected against discrimination on the grounds of pregnancy and maternity during the period of her pregnancy and of any statutory maternity leave to which she is entitled. The employer cannot take into account the employee's period of absence due to pregnancy-related illness when making decisions about her employment.

Race

For the purposes of the Act, race includes colour, nationality, and ethnic or national origin.

Religion or belief

The Act protects individual of all religions and beliefs, and those with none.

Sex

The Act protects both men and women.

Sexual orientation

The Act protects bisexual, gay, heterosexual and lesbian people.