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Employment Law > Workplace Discrimination > The Equality Act 2010 - Protected Characteristics

The Equality Act 2010 - Protected Characteristics

Employment Solicitor Martin Malone looks at workplace discrimination, exploring Protected Characteristics as defined by The Equality Act 2010.

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It is unlawful to discriminate against an employee because of their age. Age discrimination can take many forms; for example, by selecting older members of staff in a redundancy selection exercise, by replacing an older employee for a younger employee or forcing an employee to retire before the state retirement age without good reason for doing so.

Although the act protects people of all ages, different treatment because of age is not classed as unlawful direct or indirect discrimination as long as the employer can justify his actions by demonstrating that it is a proportionate means of meeting a legitimate aim. Age is the only protected characteristic that allows employers to justify direct discrimination. The Act also continues to permit employers to have a default retirement age for employees of 65.


The Act has provided a new definition of disability with a broad meaning. Disability is now defined as, a physical or mental impairment that has a substantial and long-term adverse effect on the ability to carry out normal day to day activities. As a result of the broad definition it has been made easier for a person to show that they are disabled and thus be protected from disability discrimination.

The Act puts a duty on employers to make reasonable adjustments for employees to help them overcome any disadvantages resulting from impairments.

The Act provides a new protection for disabled people; an employer must not treat a disabled person unfavourably because of something arising in consequence of their disability where you cannot show that what you are doing is a proportionate means of achieving a legitimate aim (i.e. objectively justified).

As stated earlier, indirect discrimination now covers people with a disability. This means that if an employer has a particular rule or requirement this could disadvantage people with the same disability. Unless an employer can justify this, this would be unlawful indirect discrimination.

There is also a new provision provided in the Act which makes it unlawful, except in certain circumstances, for employers to ask about a job applicant's health prior to offering them the job.

Gender reassignment

The Act provides a new definition for gender reassignment; a transsexual person is someone who proposes to, starts or has completed a process to change his or her gender. It is no longer a requirement that a person must be under medical supervision to gain protection. Therefore a man who decides to live permanently as a female but does not undergo any medical procedures would be protected. However, transgender people such as cross dressers, who do not intend to live permanently in the opposite gender, will not be protected by the Act.

Employers will discriminate against transsexual employees if they are treated less favourably for being absent from work because they propose to undergo, are undergoing or have undergone gender reassignment than they would be if they were absent from work because they were ill or injured. Employers must not regard medical procedures for gender reassignment as a 'lifestyle' choice.

Marriage and civil partnership

The Act protects employees who are married or in a civil partnership against discrimination. Single people are not protected.

Pregnancy and maternity

Pregnancy discrimination is one of the most common forms of discrimination. A female is protected against discrimination on the grounds of pregnancy and maternity during the period of pregnancy and any statutory maternity leave she is entitled to. This is not to be treated as sex discrimination during this period. If an employer dismisses or treats a pregnant employee less favourably than an employee who is not pregnant, they will have discriminated against that employee. An employer must not take into account an employee's period of absence due to pregnancy-related illness when making a decision about her employment.


An employer must not dismiss an employee or treat him or her less favourably on the grounds of his or her race. The word "race" includes colour, nationality and ethnic or national origins. Race discrimination can be either direct, indirect or take the form of harassment, perception discrimination or victimisation.

Religion or belief

The Act states that religion includes any religion and also includes a lack of religion, therefore employees are protected if they do not follow a certain religion or have no religion at all. A religion must also have a clear structure and belief system. Belief is defined as any religious or philosophical belief or a lack of such belief. To be protected, a belief must satisfy various criteria.

It should also be noted that discrimination because of religion or belief can occur even where both the discriminator and recipient are of the same religion or belief.


Both men and women are protected under the Act. Sex discrimination takes many forms and is one of the most common forms of discrimination. Women suffering less favourable treatment on the grounds of their sex is the most common area of sex discrimination. Sex discrimination can be either direct, indirect or take the form of harassment, victimisation and equal pay.

Sexual orientation

It is against the law to dismiss, treat less favourably, harass, victimise or dismiss any employee due to their sexual orientation; be they homosexual, bisexual or otherwise. Sexual orientation discrimination can be either direct, indirect or take the form of harassment, victimisation and perception discrimination.

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