The Equality Act 2010: protected characteristics and types of discrimination

The Equality Act covers exactly the same groups of individuals that were protected by the previous legislation. However, the headings of age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, and pregnancy and maternity are now to be known as ‘protected characteristics’.

Although your responsibilities under the Act will stay largely the same, there are some changes that will affect employers and any business that provides goods and services to the public, or a section of the public, and this even includes goods or services that are given away free.

Protected characteristics

Each characteristic is addressed in the new Act in summary as follows:

Age

The Act protects employees of all ages but remains the only protected characteristic that allows employers to justify direct discrimination, i.e. if an employer can demonstrate that to apply different treatment because of someone’s age constitutes a proportionate means of meeting a legitimate aim, then no discrimination will have taken place. The Act continues to allow employers to have a default retirement age of 65, as long as the default retirement age remains.

Disability

The Act includes a new protection arising from disability and now states that it is unfair to treat a disabled person unfavourably because of something connected with a disability. An example provided is the tendency to make spelling mistakes arising from dyslexia. Also, indirect discrimination now covers disabled people, which means that a job applicant could claim that a particular rule or requirement disadvantages people with that disability.

The Act includes a new provision which makes it unlawful, with limited exceptions, for employers to ask about a candidate’s health before offering them work. Find out more about key employment changes here.

Gender reassignment

It is discriminatory to treat people who propose to start to or have completed a process to change their gender less favourably, for example, because they are absent from work for this reason.

Marriage and civil partnership
The Act continues to protect employees who are married or in a civil partnership. Single people are however not protected by the legislation against discrimination.

Pregnancy and maternity
The Act continues to protect women against discrimination because they are pregnant or have given birth.

Race
The Act continues to protect people against discrimination on the grounds of their race, which includes colour, nationality, ethnic or national origin.

Religion or belief
The Act continues to protect people against discrimination on the grounds of their religion or their belief, including a lack of any belief.

Sex
The Act continues to protect both men and women against discrimination on the grounds of their sex.

Sexual orientation

The Act continues to protect bisexual, gay, heterosexual and lesbian people from discrimination on the grounds of their sexual orientation.

Types of discrimination

The new Act also extends some of these protections to characteristics that previously were not covered by equality legislation. Employers and business owners now need to be aware of the seven different types of discrimination under the new legislation.  These are:

• Direct discrimination – where someone is treated less favourably than another person because of a protected characteristic.
• Associative discrimination – this is direct discrimination against someone because they are associated with another person who possesses a protected characteristic.
• Discrimination by perception – this is direct discrimination against someone because others think that they possess a particular protected characteristic. They do not necessarily have to possess the characteristic, just be perceived to.
• Indirect discrimination – this can occur when you have a rule or policy that applies to everyone but disadvantages a person with a particular protected characteristic.
• Harassment – this is behaviour that is deemed offensive by the recipient. Employees can now complain of the behaviour they find offensive even if it is not directed at them.
• Harassment by a third party – employers are potentially liable for the harassment of their staff or customers by people they don’t themselves employ, i.e. a contractor.
• Victimisation – this occurs when someone is treated badly because they have made or supported a complaint or grievance under this legislation.

The introduction of this new consolidating piece of legislation gives employers and business owners of all types an ideal opportunity to review and reinforce their equal opportunities and accessibility policies.

This article was provided by The Forum of Private Businesses, www.fpb.org.