Protected Characteristics and Discrimination

Under the Equality Act 2010, there are nine protected characteristics:

It is unlawful for employers to discriminate against someone, either directly or indirectly, because of one of these characteristics. This applies from the recruitment process and throughout the course of an individual’s employment/engagement.

What is Direct Discrimination?

Direct discrimination is when someone is treated less favourably because of a protected characteristic. For example, it would be unlawful for an employer to choose not to promote someone because they are of a particular race.

Direct discrimination cannot be justified by an employer unless it is “a proportionate means of achieving a legitimate aim”, meaning there is a genuine ‘occupational requirement’. For example, a Catholic school requiring its Head teacher to be Catholic.

It is also unlawful to discriminate against someone because they are perceived to have a protected characteristic even though they do not, or because of their association with a person who has a protected characteristic. For example, In Coleman v Attridge Law (2008), an employee successfully claimed associative discrimination when an employer refused her request for flexible working; she claimed she was treated less favourably than others because she was caring for her disabled son.

What is Indirect Discrimination?

Indirect discrimination occurs when:

an employer applies a provision, criterion or practice
that has an adverse effect on a greater number of people with a protected characteristic than those who do not; and
which is not a proportionate means of achieving a legitimate aim.

For example, if an employer stipulates that it will only consider applications from people who hold a specific UK qualification; this may be considered indirect race discrimination as it would put people from different races/backgrounds at a disadvantage. Instead, recruiters should require a specific UK qualification ‘or equivalent’.

What is Positive Action?

Under s.158 of the Equality Act 2010, it is lawful for an employer to take ‘positive action’. ‘Positive Action’ is any action which is a proportionate means of achieving a legitimate aim of enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage.

Therefore, an employer may treat an applicant or an employee with a protected characteristic more favourably in connection with recruitment or promotion than someone without that characteristic who is as qualified for the role. For example, when choosing between two qualified candidates, an employer may opt to hire a female over a male to promote gender diversity.

Employers must ensure that before committing to positive action they have evidence to show that the targeted group is under-represented within the workforce, or that it is likely to have a particular disadvantage in taking up or doing that type of work.

How much service does an employee need to bring a discrimination claim?

There is no length of service required to bring a claim for discrimination. This is because an individual is protected by the Equality Act 2010 from the recruitment process and throughout the course of their employment.

However, if as an employer you create a great workplace culture, this isn’t something you should have to overly concern yourself with. It is good for employers and employees to have an awareness of discrimination legislation, as it is not the intention of the perpetrator, but how it is received by the individual in cases involving discrimination.

We are always here if you wish to discuss any training requirements.

Can an employer be held responsible for an employee's discriminatory actions?

If an employee discriminates against someone else in the course of employment, by law, their employer may be liable. The discrimination could happen at work or outside the workplace, for example at a work party, or through social media that’s linked to work. This is known as ‘vicarious liability’.

Employers should therefore take reasonable steps to try to prevent discrimination in the workplace. This can be done by:

having an up-to-date equality policy
providing regular anti-discrimination/equal opportunities training to staff
making it clear how staff can complain if discrimination happens
having regular one-to-one catch-ups between employees and their line managers, to help build positive working relationships.

Protected Characteristics and Discrimination

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Protected Characteristics and Discrimination

Do you need HR support?

We're here to help

Contact Us​

Contact Us