Blandy & Blandy LLP Solicitors

Insights // 13 August 2019

What Are An Employee's Protected Characteristics and What is Unlawful Discrimination in the Workplace?

Solicitor Andrea Corr, in our Employment law team, explains an employee's protected characteristics and what represents unlawful discrimination in the workplace.

What are my protected characteristics?

The nine characteristics protected by law are:

  • Age
  • Disability, which includes both physical and mental health
  • Gender re-assignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race, which includes colour, nationality or ethnic or national origins
  • Religion or belief
  • Sex
  • Sexual orientation

Other characteristics, such as having a particular qualification, or being a parent or a carer, are not generally protected.

What is unlawful discrimination?

Unlawful direct discrimination occurs when an employer treats a job applicant or worker less favourably because of one or more protected characteristic(s). If your employer pays women less for doing the same (or like) work as men this would be an example of direct sex discrimination.

Direct discrimination is not always obvious. However, it may be possible to point to particular differences in treatment across particular groups. In May 2019 individuals with a disability were  nearly 3 times more likely to be unemployed than those without (the “disability gap”).  Even within that disability gap, those with a mental health disability, such as schizophrenia, rather than a physical disability, such as hearing loss, were also significantly less likely to be employed. Pregnant employees and those returning to work after maternity leave are significantly more likely to be made redundant. To withdraw a promotion from an employee because you have been advised that they are pregnant is direct discrimination. So is refusing to employ a job applicant because they have a disability. Direct discrimination (other than on the grounds of age) cannot be justified.

Unlawful indirect discrimination occurs when an employer appears on the face of it to treat workers or job applicants in the same way by application of a particular policy, criterion or practice. However, in practice, the effect of that policy, criterion or practice, is to disadvantage a significantly larger number of people with a particular characteristic, it is to the individual’s disadvantage and it cannot be shown to be objectively justified. A basic example would be requiring all employees to be over a certain height. On the face of it the policy applies to everyone. However a significantly larger number of women, or those with a disability, would be affected. If the work is office based, it would also be difficult to justify.

Harassment occurs when an individual engages in unwanted conduct related to a relevant protected characteristic (which do not include marriage or civil partnership, or pregnancy and maternity) which has the purpose or effect of violating another individual’s dignity or creating an intimidating hostile, degrading, humiliating or offensive environment. Examples include offensive name calling or unwanted sexual harassment.

Victimisation occurs when an individual (A) is subjected to a detriment (a disadvantage) by another (B) because A has done “a protected act” or because B believes that A has done or may do “a protected act”. Examples of a protected act are making a discrimination claim or complaining about harassment but the definition is very extensive.

In some limited circumstances an individual who has experienced less favourable treatment because of their association with an individual with a protected characteristic (even though they themselves do not have that particular characteristic) may be able to bring a claim because of the unfavourable treatment caused by their association.

Positive discrimination is where a worker or job applicant is treated more favourably than another because of a protected characteristic. An example would be offering a job to a less well qualified person because they are in a group which is under-represented in the workplace. Positive discrimination is generally unlawful. It is however permissible to:-

  • specify particular occupational requirements e.g. to advertise for an actor of a particular sex or race which is required by the part;
  • treat a job applicant with a disability more favourably by making reasonable adjustments to enable them to perform their work;
  • make arrangements for a pregnant employee in connection with childbirth and maternity leave; and  
  • treat an employee who is on maternity leave more favourably by offering them a suitable alternative vacancy if their role is made redundant whilst they are on maternity leave, even if this disadvantages other staff that are not on maternity leave.

Discrimination is a very complex area and this is only a summary. Disability discrimination, for example, has other types of claims available, such as discrimination arising from a disability and a failure to make reasonable adjustments. This is something our Employment law team can advise you in relation to.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

Andrea Corr

Andrea Corr

Solicitor, Employment Law

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