A Reminder for Employers of the Protected Characteristics
Personnel Today reported a story on 4th September 2020 about a job advert on the DWP’s Find a Job Website. The DWP told a hair salon their advert could not specify that they wanted a “happy” stylist. It said the advert was discriminatory.
The DWP admitted it had made a mistake in this case, but the point remains that there are Protected Characteristics under the Equality Act 2010 that employers need to be mindful of, whether in recruitment, during employment, or when ending employment. This is a summary of what the Protected Characteristics are, and when they might take effect.
What are the Protected Characteristics? (PCs)
The Equality Act sets out 9 PCs. These are:
- Pregnancy or maternity leave
- Sexual Orientation
- Gender Re-Assignment
- Marriage and Civil Partnership Status
- Religion or belief
The Equality Act protects employees from discrimination on the above grounds.
When do they Apply?
It is unlawful to discriminate in recruitment, during employment, and when terminating employment. There are infinite ways in which discrimination can happen, and this blog cannot begin to cover them all, but below are just a handful of examples:
- In recruitment:
By putting a pregnant candidate at a disadvantage because she is pregnant, by rejecting an application from a candidate of a different nationality because you don’t think they’ll fit in with your staff, by requiring a qualification that is only available to persons from the UK, by asking questions to female applicants that you would not ask of male applicants, by rejecting a male candidate because you don’t think they would fit a previously all-female team, by asking a candidate questions about their disability before making a job offer, or by failing to make reasonable adjustments to the recruitment process.
- During employment
By paying men and women differently for doing an equivalent job, by using inappropriate language to describe staff in a particular age group, by failing to make reasonable adjustments for an employee with a disability, by moving an employee undergoing gender reassignment to a non-public-facing role, by having policies that put married or civil-partnered employees at a disadvantage, by treating an employee unfairly because they made a complaint of discrimination or gave evidence in support of another staff member’s discrimination complaint, by dealing with requests for religious holidays inconsistently, by failing to promote based on sexual orientation, by allowing unwanted conduct relating to sexual orientation, by having policies which in practice are detrimental to a protected group.
- When terminating employment
By taking into account sickness for maternity-related illness when scoring for redundancy candidates, by failing to take into account a mental health disability when dismissing for capability or conduct reasons, by failing to offer suitable alternative work as a priority to an employee on maternity leave, by dismissing because you don’t want to bother making reasonable adjustments for a disabled employee, by dismissing due to the employee’s mental illness where the illness amounts to a disability, by preferring an employee for redundancy because they have submitted grievances about previous race discrimination.
In recruitment, the employer may discriminate lawfully where a PC is a requirement of the job (Occupational Requirement), but these situations are rare and you should first seek advice. Examples would be a deaf worker being required, to work with deaf clients. It is also permitted in certain circumstances to encourage applications for people with a protected characteristic, for example, if the employer wants to address that some PCs are under-represented in their workforce.
During employment, in some circumstances, the employer can justify actions as lawful because they have a justifiable business reason for them. They must be a proportionate means of achieving a legitimate aim. Legitimate aims can include running an efficient service, the health and safety of individuals, and the desire to make a profit. For example, requiring employees to have a certain amount of experience before they are promoted might be considered indirectly discriminatory to women who have had breaks for maternity leave, but might be justified if that level of experience is proved to be necessary to do the job sufficiently well or to supervise others. “Proportionate” means there must be a balance between the advantage to the employer, and the potential disadvantage to the employee. For example, a physical fitness test for a job might be discriminatory to older candidates, but it might be justified if there is great importance in being sufficiently fit to do the work, even if older employees are disadvantaged.
Employers who fail to consider PCs of their employees or prospective employees may face claims in the Employment Tribunal. Tribunal awards for discrimination are relatively high and we recommend you seek advice at an early stage. For example, when you first begin dealing with a grievance or disciplinary. Consider at the start whether a PC could be a factor and take advice on how to address that and minimise the risks. If making redundancies or offering settlement agreements, be sure to flag up to your advisor if there is a PC that might give rise to a potential claim.
You might find it helpful to read our other blogs which touch on Protected characteristics:
- Managing Autistic Employees
- Employment Protection for ethical Vegans
- Should Football/Sports Talk be Banned in the Office?
- Can I be Sacked Whilst off Sick?