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Protected Characteristics

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To be able to consider taking forward a claim under the Equality Act, you must first show that you have a ‘protected characteristic’ under the Act.

The protected characteristics under the Equality Act are:

  • Age
  • Disability
  • Gender Reassignment
  • Marriage and Civil Partnership
  • Pregnancy and Maternity
  • Race
  • Religion or Belief
  • Sex
  • Sexual Orientation

Under the section of the Act relating to the provision of services, discrimination relating to under 18s and treatment relating to Marriage and Civil Partnership is not legally protected. The others are explained further below.

Protected Characteristics

 

Age

Age is defined in the Act by reference to a person’s particular age group.

‘Age group’ can mean people of the same age or people within an age range, for example people under the age of 60 or similar. It can also include a more specific reference to, for example, only those born in 1987 or etc.

The definition of ‘age group’ is intended to be flexible and its definition will often depend upon the circumstances in which any alleged discriminatory treatment occurs.

Disability

The Act defines a disabled person as being a person who has:

“A physical or mental impairment that has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities.”

Some people will not have to meet the definition of disability as people with certain impairments are automatically deemed disabled and are therefore automatically granted legal protection.

The Act states that a person who has cancer, HIV infection or multiple sclerosis (MS) is a disabled person and those people will therefore receive the automatic protection and will not have to prove that their symptoms amount to a disability.

The Act also states that a person who is certified as being blind, severely sight impaired or sight impaired or partially sighted by a consultant ophthalmologist will also be automatically deemed to be a disabled person.

If someone does not have one of the above listed disabilities then they will have to establish that their symptoms meet the following test as set out in The Act:

  1. The person must have a physical or mental impairment;
  2. The effects of the physical or mental impairment must be deemed to be substantial. The Act states that the adverse effects will be considered substantial if the effects are more than minor or trivial;
  3. The third element of the definition of disability is that the physical or mental impairment must be long-term. The Act states that an impairment is considered to be long-term if the impairment is one which has lasted at least 12 months or is likely to be at least 12 month;
  4. The final element of the definition of disability is that the physical or mental impairment must adversely affect a person’s ability to carry out normal day-to-day activities.

Gender Reassignment

If you’ve been treated unfairly because you’re a transgender person, this is called discrimination because of gender reassignment.

You have the protected characteristic of gender reassignment if you:

  • Want to reassign your sex from your birth sex to your preferred sex;
  • Do this by changing physical or other characteristics.

Gender reassignment is a personal process rather than a medical one meaning that you don’t have to undergo medical treatment or be under medical supervision to be protected under the Equality Act as a transgender person.

Pregnancy and Maternity

The Act states that Pregnancy and Maternity is a protected characteristic.

Examples of how this may be applicable to cases of civil discrimination are:

  • A restaurant owner must not ask a woman to leave the restaurant because she is breastfeeding her baby
  • A shopkeeper must not refuse to sell alcohol to a woman just because she is pregnant

Protected Characteristics

 

Race

Under the Act, Race includes:

  • Colour
  • Nationality
  • Ethnic or national origin

The Act states that a person has the protected characteristic of race if they fall within a racial group. The Act defines a racial group as a group of persons defined by race, i.e. by their colour, nationality or ethnic or national origin.

Example

A couple from a traveling community are refused service in a pub that displays on its door a ‘No Gypsies or Travellers’ sign. It is obvious from the notice on the door and the treatment the Gypsy couple receive that their less favourable treatment is because of race and they would be eligible to consider a claim for civil discrimination.

Nationality (i.e. citizenship), is distinct from national origin. Citizenship in itself if not a protected characteristic although it can often be linked to national origin.

The Act also protects people who belong to a racial group, which includes people who belong to an ethnic group. An ethnic group is a group that regards itself and is regarded by others as a distinct and separate community.

Case law has shown that there are several defining characteristics of an ethnic group. For an ethnic group to be covered by the Act the group must have:

  1. a long shared history;
  2. a cultural tradition of its own;
  3. one or more of the following characteristics: a common language, a common literature, a common religion, a common geographical origin, or be an oppressed or minority group.

The Courts have previously held that the following groups are ethnic groups and therefore people who belong to these groups are protected by the Act:

  • Sikhs
  • Jews
  • Romany Gypsies
  • Irish Travellers
  • Scottish Gypsies
  • Scottish Travellers

Religion or Belief

Religion under The Act means any religion but also includes a lack of religion.

The term includes the more commonly recognised religions but may also cover less mainstream or less well-known religions, providing the religion has a clear structure and belief system.

Under The Act, belief means any religious or philosophical belief and also includes a lack of belief.

A philosophical belief may also be covered by the Act.

The Courts have previously established a legal test for what amounts to a philosophical belief and as such for a philosophical belief to be protected under the Act it must:

  • Be genuinely held
  • Be a belief and not an opinion or viewpoint based on the present state of information available
  • Be a belief as to a weighty and substantial aspect of human life and behaviour
  • Attain a certain level of cogency, seriousness, cohesion and importance
  • be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others

Examples of philosophical beliefs which the Court have accepted are humanism, atheism and climate change.

Sex

The Act states that a man and a woman, as well as persons of the same sex, have the protected characteristic of sex.

Sexual Orientation

The Act states that sexual orientation means a person’s sexual orientation towards:

  • Persons of the same sex
  • Persons of the opposite sex, or:
  • Persons of either sex

The Act protects not just a person’s stated sexual orientation but also manifestations of that sexual orientation such as appearance, the places they visit or the people they associate themselves with.

Legal protection from discrimination on the basis of sexual orientation applies to everyone, whatever their sexual orientation.

Sexual orientation discrimination includes being treated less favourably because:

  • You are lesbian, gay, bisexual or straight
  • People think you are lesbian, gay, bisexual or straight, or:
  • You are associated with someone who is lesbian, gay, bisexual or straight. For example – a friend, relative or colleague.

Courtroom

 

Can I make a claim for Discrimination?

If you believe that you have been treated differently because of one (or more) of the protected characteristics listed above, then you may be able to make a claim against the company or organisation in question.

To read more about how we may be able to assist with a claim, please read more here.

Why choose Oakwood Solicitors Ltd to bring your dispute claim?

From the start of your claim until the conclusion you will have a dedicated advisor who will run your claim, assisting you in the event of any queries or issues you may have. Regular updates will be provided by your case handler up until your claim has ended. This is to ensure the process is as stress-free and effortless as possible.

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Further reading

ACAS – Equality and Discrimination

WHAT TO DO NEXT

For advice on how to progress with a Discrimination or to learn more about Protected Characteristics and legal rights, get in touch today for a free initial consultation. Choose one of the methods on the right-hand side of this page, or call us on 0113 200 9787 to find out how we can help you.

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Laura Walton

Solicitor - Commercial Litigation and Dispute Resolution

0113 268 0332

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