02/02/2021 – Protected Characteristics
Can you refuse to employ a smoker? It may surprise you, but yes you can – smoking is not one of the 9 ‘protected characteristics’ on which we must not discriminate. ‘Discrimination’ means subjecting someone to a detriment because they have, or in some cases because they are perceived to have, or are associated with someone else who has, a protected characteristic.
But first, why should employers, be bothered? There are a number of very good reasons to have a Dignity at Work policy in place, and to make sure everyone has read it:
- Because a person doesn’t have to have 2 years’ service to bring a tribunal claim – in fact they don’t need any service at all – they might not even be an employee.
- Because discrimination claims lead to the highest compensation pay-outs and are the most expensive to defend.
- Because the employer is often found liable for the discriminatory acts of employees – even if they didn’t know about the acts.
- Lastly because discrimination is rife, often unconscious, and complex.
In an employment context a ‘detriment’ covers a wide range of things, and in this context it could include firing someone for reasons connected with their protected characteristic, or not hiring them, or not considering them for progression, or otherwise behaving towards them (or tolerating others behaving towards them) in a manner they are likely to find unpleasant, intimidating, hostile etc.
What are the 9 protected characteristics as defined in the Equality Act 2010?
- Gender reassignment (undergoing or are proposing to undergo (or has undergone) a process (or part of one) to change sex.
- Pregnancy & maternity.
- Race (including colour, nationality, ethnic or national origin and caste).
- Religion or belief.
- Sexual orientation.
- Marriage and civil partnership.
Employers can be liable for an employee’s discriminatory actions
If one employee subjects another to detriment because of that person’s protected characteristic, the victim of that treatment could bring a claim against the employer (even if the employer didn’t know about it and wasn’t a party to it,) and the employer would have to prove that it did what it reasonably could to have prevented that type of treatment occurring. In a very small business that might be as simple as having a Dignity ay Work and Equal Opportunities policy and making sure that all employees have read it. Larger organisations will be expected to ensure employees and managers are trained on the policies, and that the training is refreshed every year. myHRdept customers have access to member only videos for this purpose.