The protected characteristics explained
Updated on 30 November 2021
Some explanation of the protected characteristics as identified under the Equality Act 2010
In the Equality Act 2010, nine characteristics were identified as 'protected characteristics'. These are the characteristics where evidence shows there is still significant discrimination in employment, provision of goods and services and access to services such as education and health.
Where someone is experiencing discrimination because of any of the protected characteristics, they should contact the Equality and Diversity Office for guidance.
This briefing also sets out some examples of what are day to day issues that could amount to discrimination.
The protected characteristic of age applies to all ages. Young people experience difficulty accessing employment because of 'lack of experience' whilst older people worry about finding work because of social perceptions of older people - 'can't keep up with the latest technology'.
In the UK there is no longer a default retirement age and so theoretically people can continue to work for as long as they wish. The main points are: can someone meet the role requirements? This is the same for everyone, irrespective of age.
In relation to younger people, employers should consider whether there is an opportunity to provide 'on the job' vocational or non-vocational training. Without that kind of consideration, young people are unlikely to get any opportunities to get into the workplace.
Under the Equality Act, a disability is defined as, ' any physical or mental impairment that has a substantial and long term effect on a person's ability to carry out normal day to day activities'.
For this definition, 'long term' is generally held to mean a year or more, or a regularly recurring condition, where the recurrences continue beyond a year. The term 'day to day activities' has been held to be things such as running for a bus, opening doors and doing the everyday things that most people take for granted. However things such as the ability to concentrate or focus for a reasonable period of time and also to carry out activities related to the workplace are now considered.
There are conditions which are ring fenced as a 'disability' from the point of diagnosis and these include cancer, HIV and Aids and multiple sclerosis.
This definition means that people with ailments that wouldn't necessarily have been considered as a disability in the past, can fall into that category now. Someone with a heart condition may meet the criteria. In terms of mental health, conditions such as clinical depression, schizophrenia, Bi Polar would generally be regarded as a disability, irrespective of whether or not they are controlled by medication.
Stress related illness and depression can be difficult to determine. Stress in itself is not an illness, however it produces symptoms in the individual that can have a long term impact. Similarly with depression. The definitive answer can only be given by a tribunal, although employers and the university would take guidance from the individual and medical professions to determine the right support mechanism if required.
Conditions such as alcoholism, drug and substance addiction and obesity are not classed as disabilities, however some of the resulting medical conditions that arise from these; diabetes or liver disease may in themselves be a disability.
Under the Equality Act, employers and education providers should support staff and students to overcome barriers presented in the work and study place because of a disability. These are 'reasonable adjustments' and can be adjustments to work and study terms and conditions or by the provision of specialist equipment. In the University, Disability Services can provide detailed guidance on these.
Gender reassignment is when someone decides to live in the gender they identify as rather than the gender they were assigned at birth. At birth our genitalia are used to determine our gender, however our gender identity is personal to us as individuals and is not about the physical sex we are but about how we feel in ourselves.
To re-assign gender, a person will decide that they wish to live their lives in the gender that they self-identify as. There is no legal requirement for surgical or medical interventions. If someone wishes to undertake surgery to re-assign their genitalia, they must first live their lives in the gender they identify as for at least a year. This is known as the 'real life test'.
Before re-assigning, an individual will have gone through some considerable emotional turmoil and experiences related to their gender identity over many years and undertaking gender re-assignment is not an easy step for anyone.
In workplaces the main concerns for someone transitioning will be the acceptance of their colleagues and the use of their new identity and security of their personal data.
The use of the correct pronoun to describe someone is an important part of their transition and where colleagues refuse to use the correct pronoun, the individual's confidence may be undermined. Persistent use of the wrong pronoun is a form of harassment. Data held for the individual before their re-assignment, must be kept secure to prevent the unlawful sharing of their gender history. The use of facilities such as toilets and changing rooms are also often raised. If someone re-assigns their gender they are lawfully entitled to use the facilities for the gender they identify as.
Marriage and civil partnership
The element of the legislation is about the rights afforded by marriage or civil partnership and in this respect is generally held to be rights for people within a formal legal partnership, whether same sex or opposite sex. This includes same sex marriage. It does not offer protection for those who cohabit but do not have that formal affirmation of their relationship.
This protection is often associated with pension rights and rights to financial recompense in the workplace, however that is not always the case. At work place related social events, invitations that extend to include same sex partners can give a very clear message of a culture that is inclusive.
In the same vein, capturing Civil Partnership on monitoring forms expresses a similar message. However if the culture doesn't support inclusion, those in Civil Partnerships in particular can feel left out.
Pregnancy and maternity
This provides protection for the pregnant women from direct and indirect discrimination and also for anyone caring for a new born or very young child. The legislation protects someone from exercising their rights to maternity leave as well as the rights to apply for appointment, promotion and access to development opportunities whilst pregnant.
Organisations should carry out a risk assessment to ensure that pregnant women are not carrying out tasks that would be a risk either to herself or the unborn child. Certain physical roles or working with certain chemicals or medical equipment may require a short term adjustment to a role until the risk is past. The provision of flexible working arrangements, breast feeding facilities and child care opportunities contribute positively to this protected group.
Keeping in touch days and regular updates to the individual whilst they are on leave can help to support someone to feel included in their absence. Compulsory redundancy whilst someone is on maternity must be fully justified with evidence to show no other alternatives were available.
This protected group covers discrimination because of ethnicity, nationality, national identity, skin colour and caste. Ethnicity is determined by a long and shared history, often religion and language. Certain religious groups, such as Jews and Sikhs are protected by race because of their long shared single history and culture which in itself determines their ethnicity.
In the UK Gypsy Travellers (not New Age Travellers) are a minority ethnic group because of that long and shared history. Skin colour difference is not necessary for a racist incident to have occurred; you may have an incident between two people or groups because of their national identity or nationality and so national political conflicts may result in conflict or tensions between individuals within a work area or community.
In the UK, our social history has played a significant part in how minority ethnic groups are viewed, particularly those of a different skin colour. In addition the ever changing political climate plays a part in creating either an inclusive or divisive culture for those of a different ethnicity, nationality or skin colour
In workplaces the numbers of people from minority groups in strategic posts and organisational committees are few across our society, whilst in some ethnic groups educational attainment remains low, with high levels of exclusion, particularly amongst boys.
In relation to employment, unemployment amongst minority ethnic communities is higher than in white communities and educational attainment does not translate equality into full time employment. Evidence from within Universities is that BME staff are more likely to be in fixed term positions and for longer.
Religion or belief
This characteristic covers all the recognised faith groups and also covers those who do not follow any religion or belief system. Religion and belief is often used as a motivation for extremist behaviour. However it is important to remember that those who do participate in such behaviour do not reflect the majority within that faith group. Historical conflicts between different groups can result in tensions in workplaces or study environments.
Setting meetings and events on particular faith days can result in individuals being excluded and efforts should always be made to avoid days of adherence in order to attract the widest audience. Dietary requirements are also important in relation to some faith groups. As with dietary requirements for health or personal choice reasons, you should try and capture the requirements of the intended audience to attract and accommodate those from different faith groups.
This is the protection of men and women.
Whilst most of the cases that come before employment tribunal are brought by women, it is true that men also face discrimination because of their sex.
For women in employment there are issues regarding pay, with the pay difference for pro rata posts in private sector often 20% less and more. In public sector, theoretically there should be no difference in pay for a pro rata post. However across both private and public sectors, the breakdown of women and men across the different pay grades show a much greater number of women in lower grades and much higher numbers of men in the senior grades. This has come about in part because of social history, but also because of bias in selection processes, often unconscious.
In relation to those men whose ambition it is to follow a career path in what may be seen as traditional female roles, another set of social stereotypes may influence them away from that path. An example is the low numbers of men who work in nursing or HR.
Sexual harassment also falls under this protected characteristics and is 'any unwanted conduct of a sexual nature or other conduct based on sex'. There are two distinct elements to this. The first is 'conduct of a sexual nature'. This is the conduct that can be described as having a sexual motive or perceived as having a sexual motive. Comments about sexual behaviour , unwanted touching that can appear minor in nature to extreme behaviours that amount to sexual assault or rape, could all be categorised as 'conduct of a sexual nature'.
However the other distinct element of 'conduct based on sex' is also a form of sexual harassment. It is about the abuse of power in a way that demeans the value of one sex or another in the day to day environment. Demeaning comments about women or about men that are intended to 'put them in their place' fall into this. Although that behaviour may be targeted at an individual, it need not be. In those circumstances the behaviour creates a culture that permits it to be acceptable and creates the power balance in terms of who is valued and who is not.
Sexual orientation protects all people from discrimination because of actual or perceived sexual orientation or discrimination by association. There are strong social influences that impact on people because of their sexuality. These have been part of our society for centuries and the consequences for people of any sexual orientation other than heterosexual have been extremely damaging.
Today, although there are great changes in attitudes, there is still a real concern for some people in being open about who they are attracted to for fear of reprisal from family, friends and colleagues and strangers.
At the University there is an LGBT Staff Network and support can also be sought from external LGBT Networks, locally and across Scotland.
Examples of discrimination related to sexual orientation are the use of homophobic language, refusal to provide a service such as accommodation or a marriage service to a same sex couple, and verbal or physical abuse directed at someone who is known to be or perceived to be gay or bisexual.
Equality and Diversity Officer
+44 (0)1382 384103