Equality

This occurs when a worker is treated less favourably than another because of that worker’s protected characteristic.

This happens when an employer applies a provision, criterion or practice that appears neutral but, in practice, puts workers who share a protected characteristic at a particular disadvantage.

An employer may be able to defend a claim of indirect discrimination if they can show that the approach taken was a proportionate means of achieving a legitimate aim.

Harassment can include

• Engaging in unwanted conduct in relation to a protected characteristic which has the purpose or effect of violating a person’s dignity or creating an intimidating, degrading, humiliating or offensive environment
  
  
• Engaging in unwanted conduct of a sexual nature and the conduct has the same effect or purpose as that referred to above; or
  
  
• Engaging in unwanted conduct of a sexual nature, or which is related to sex or gender reassignment, that has the same effect or purpose as that referred to above and, because the person rejects or submits to that conduct, treating them less favourably than would otherwise have been the case

(Note: Harassment does not need to have been intentional. It can be enough if the effect of the conduct meets one of the tests above.)

Victimisation occurs where a person is subjected to a detriment because they have:

• Given evidence or information in connection with equality-related proceedings; or
  
  
• Made an allegation that someone has breached equality law

This is where an employer treats a worker unfavourably because of something arising in consequence of the worker’s disability and the employer cannot show the treatment is a proportionate means of achieving a legitimate aim.

(This does not apply where the employer can show that they did not know and could not reasonably have been expected to know that the worker had a disability.)

Age within the Equality Act 2017 as a protected characteristic can be a reference to an age or a range of ages e.g. 18 years old or 'older applicants'.  

Recruitment

Employers will want to ensure they are not accidently falling foul of the Equality Act 2017 in advertising for jobs using phrases such as 'youthful' or 'mature' which could (depending on the context) be in danger of breaching the Act. 

Retirement Age 

There is currently no ability to enforce a retirement age in employment unless an employer can 'objectively justify' one. This means that an employer will need to be able to show legitimate reason for having said retirement age. The imposition of the forced retirement age but also be seen to be proportionate to achieve that aim.  

Please see our Guide for further information.

The Equality Act 2017 defines a disability as being an impairment that is:

• Physical or mental - this includes mental health conditions and those other conditions that may not be visual such as diabetes and epilepsy
  
  
• Long term - This means has lasted or is likely to last for at least 12 months or for the rest of the persons life 
  
  
• Is substantial - Means more than minor or trivial
  
  
• Has an adverse effect on tier ability to carry out normal day-to day activities  

**Cancer, HIV and multiple sclerosis are deemed disabilities under the Act from the point of diagnosis i.e they are automatically classed as disabilities.

**People who have had a disability within the definition are protected from discrimination even if they have since recovered.

It is important to note that there is no need for a person to show a medical diagnosis to prove a disability. The important thing is that the impairment falls within the test set out in the Act (i.e the effect is all that is needed to show). 

Duty to make reasonable adjustments

The duty to make reasonable adjustments is made up of three elements that employers are required to take reasonable steps to:

• Avoid the substantial disadvantage where a provision, criterion or practice applied by or on behalf of the employer puts a disabled person at a substantial disadvantage compared to those who are not disabled
  
  
• Remove or alter a physical feature or provide a reasonable means of avoiding such a feature where it puts a disabled person at a substantial disadvantage compared to those who are not disabled
  
  
• Provide an auxiliary aid (which includes an auxiliary service) where a disabled person would, but for the provision of that auxiliary aid, be put at a substantial disadvantage compared to those who are not disabled 

The duty applies in every stage of employment, including at recruitment all the way through to dismissal.  

An employer has a duty to make a reasonable adjustment if they know, or could reasonably be expected to know, that a disabled person is, or may be, an applicant for work. 

Once in employment an employer only has a duty to make an adjustment if they know the facts of the worker’s disability and that the worker is, or is likely to be, placed at a substantial disadvantage. An employee can keep their disability secret from the employer but unless the employer could reasonably be expected to know about it anyway, the employer will not be under a duty to make a reasonable adjustment.  

Therefore, if an employee feels they need an adjustment to the way or how they work it is always best practice to expressly ask for this adjustment as opposed to relying on the employer assuming anything.  

We would always recommend an employer works with the employee who has requested the reasonable adjustment to communicate what and how adjustments may be facilitated. 

For more detailed guidance please see our guide on Disability and our guide on reasonable adjustments 

People who are proposing to undergo, are undergoing, or have undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of sex have the protected characteristic of gender reassignment. 

The Act does not require someone to be undergoing medical treatment for them to qualify for protection under this protected characteristic. It is deemed to be a personal process rather than a medical one.  

For more detailed guidance, please see our guide.

Only people who are married or in a civil partnership are protected under the Act, those who are not or who intend to marry/form a civil partnership are not protected. 

For more detailed guidance please see our guide.

It is unlawful discrimination to treat a woman unfavourably because of her pregnancy or a related illness, or because she is exercising, has exercised or is seeking or has sought to exercise her right to maternity leave.

The characteristic covers a woman from when she becomes pregnant until her maternity leave ends or she returns to work (or opts to leave employment).

For more detailed guidance, please see our guide.

The protected characteristic of Race may include different elements that often merge: 

• Race – an umbrella term for the other four aspects below
  
  
• Colour – examples include black and white. Like ‘race’ it tends to overlap, particularly with the concepts of ‘ethnic origin’ and ‘national origin’  
  
  
• Ethnic origin – this usually refers to the ethnic group to which someone belongs. An ethnic group will usually have a long, shared history and its own cultural traditions which set it apart from other groups. It may also have a shared language, literature, religion and geographical origin, and may also be a minority or oppressed group. Examples of ethnic groups include Sikhs, Jews, Romany Gypsies and Irish Travellers (some of which have their own religions)  
  
  
• National origin – birthplace, the geographical area and its history can be key factors. Examples include Welsh and English. National origins can include origins from a nation that no longer exists. For example, Yugoslavia. Someone’s national origin is fixed at birth, but their children may have a different national origin if they are born in another country
   
• Nationality – usually the recognised state of which the employee is a citizen. In other words, what it says in their passport if they have one. For example, British citizen. This can differ from national origin

Employers, senior managers, line managers, HR personnel, employees and their employee and trade union representatives should make sure they understand what race discrimination is and how it may arise, their rights and responsibilities, the employer’s policy for preventing discrimination and what behaviour is unacceptable.  

Awareness of what behaviour is unacceptable is essential, because many people do not consider that their jokes, nicknames, and ‘banter’ or invasive questions may be unlawful. These can be some of the most common forms of race discrimination. 

For more detailed guidance, please see our guide.

What is a religion is not defined by the Equality Act. However, in line with the European Convention on Human Rights and Britain’s Equality and Human Rights Commission’s employment statutory code of practice, it is accepted that:  

• A religion must have a clear structure and belief system
  
  
• A clearly-structured denomination or sect within a religion can be covered
  
  
• Employees without a religious faith, as well as those with a faith, can be protected against discrimination. For example, someone who is not a Hindu would be protected against discrimination because they are not a Hindu
  
  
• What makes up religious belief or practice may vary among people in that religion
  
  
• No one religion or branch of a religion overrides another – so an employee is protected against discrimination by someone of another religion, or of the same religion or of a different branch or practice of their religion. For example, it would be discriminatory for an employee to treat a colleague of the same religion unfairly because they regard them as less orthodox in their belief

The Equality Act does not give a comprehensive list of religions. Religious belief is an individual’s own faith and how it affects their life. 

Broadly speaking, a philosophical belief must be all of the following:  

• Genuinely held
  
  
• Not just an opinion or point-of-view based on current information
   
• A weighty and substantial aspect of human life and behaviour
   
• Clear, logical, convincing, serious, important, and
  
  
• Worthy of respect in a democratic society, compatible with human dignity and not conflicting with the fundamental rights of others

For more detailed guidance, please see our guide.

The Equality Act protects and applies equally to people who are discriminated against because they are:  

• Male or female
   
• An employee associated with someone who is male or female – for example, a colleague, friend or family member
  
  
• An employee who is perceived – correctly or incorrectly – to be male or female
  
  
• Subjected to comments and behaviour regarding sex which they find offensive

Employers and employees should avoid making assumptions about people because of their sex. Such guesswork can often be done without realising – what is known as unconscious bias. For example, this might include assumptions about their capabilities, the type of work they should/shouldn't do, traits and appearance. 

For more detailed guidance, please see our guide.

The Equality Act 2017 defines sexual orientation as:  

• A person’s sexual orientation towards persons of the same-sex (lesbians and gay men)
  
  
• A person’s sexual orientation towards persons of the opposite sex (heterosexual)
  
  
• A person’s sexual orientation towards persons of either sex (bisexual)  

The law protects and applies equally to people who are discriminated against because they are:  

• A lesbian, gay man, heterosexual or bisexual. It does not specifically use these terms, but these are the most commonly used and accepted descriptions in everyday life for each of the protected sexual orientations
   
• An employee associated with someone who is lesbian, gay, heterosexual or bisexual. For example, a friend or family member
  
  
• An employee who is perceived – correctly or incorrectly – to be lesbian, gay, heterosexual or bisexual
  
  
• Subjected to comments and behaviour regarding sexual orientation which they find offensive

For more detailed guidance, please see our guide.

Employers must give men and women equal treatment in the terms and conditions of their employment contract if they are employed to do:

• 'Like work' - work that is the same or broadly similar
  
  
• Work rated as equivalent under a job evaluation study
   
• Work found to be of equal value in terms of effort, skill or decision making

Employees can compare any terms in the contract of employment with the equivalent terms in a comparator’s contract. A comparator is an employee of the opposite sex working for the same employer, doing like work of equal value.  

However, an employer may defend a claim if they can show the reason for the difference is due to a genuine factor and not based on the sex of the employee. For example, it might be possible for someone to be paid more than someone of the opposite sex who does similar work because: 

• They are better qualified, if their skills are crucial to the job and hard to recruit
  
  
• They do night shifts, and the employer can prove that they can only cover night shifts by paying staff more

For more detailed guidance, please see our guide.

Please see our guide which aims to help employers of all sizes, senior managers, line managers and HR personnel to:  

• Encourage equality - equal job opportunities and fairness for employees and job applicants in the workplace
  
  
• Minimise the risk of discrimination against employees and job candidates because of one or more of the nine protected characteristics under the Equality Act - age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation
  
  
• Promote diversity – by valuing differences between staff whether, for example, because of race, age, religion or sex
  
  
• Manage fairly the need for different working patterns, including flexible working, in a 24/7 world where working populations are becoming ever-more diverse