Protected Characteristics

The protected characteristics are to be found in s.4 EA:

• Age

• Disability

• Race

• Religion and belief;

• Sex

• Sexual Orientation

• Pregnancy/Maternity

• Marriage/Civil Partnership

• Gender reassignment

Age s.5 EA

Defined in s.5 EA as being by reference to an age (e.g. 20-year olds) or an age group (e.g. the “over forties”).

Disability s.6 EA

‘Disability’ is one of the protected characteristics under the Equality Act 2010 (‘EA’).  The definition of disability is found in s.6 EA as follows:

            “A person (P) has a disability if:

(a)    P has a physical or mental impairment, and

(b)    the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

Race s.9 EA

Defined in s.9(1) EA to include:

(a)  colour (e.g. being black or white);

(b)  nationality (in a legal sense e.g. being a British or Spanish citizen); or

(c) ethnic or national origin (refers to a sense of citizenship with a historic and/or geographical element).

Have a look at our race discrimination claim template. What constitutes an ethnic group is fairly wide; it includes groups which might not have a shared ‘race’ but a shared history and cultural tradition that distinguishes them from other groups. For example in Mandla and another v Lee and others [1983] 2 AC 548 a school had refused to admit a Sikh student because he had a turban. The school denied that being a Sikh was a membership of a racial or ethnic group. Lord Denning dissented and held this case should not have been perused. The decision classed Sikhs as not being “ethnic”. Lord Denning remarks sparked protests, including a demonstration where thousands of Sikhs participated in Hyde Park. Ministers were forced to intervene and declare that if the House of Lords did not correct the Court of Appeal ruling they would legislate to remedy the problem.

In BBC Scotland v Souster [2001] IRLR 50, the Court of Session confirmed that the Scots and English are separate racial groups, defined by reference to their national origins. Thus there is agreement that the English and Scottish peoples belong to distinct racial categories. According to the Race Relations Act of 1976, discrimination might take place if an individual was treated differently due to the fact that they were of English or Scottish descent.

Religion or belief s.10 EA

(1)  Religion means any religion and a reference to religion includes lack of religion.

(2)  Belief means any religious or philosophical belief and a reference to belief includes a reference to lack of belief.

Religion is relatively straightforward to define and includes all the established religions.

“Philosophical belief” is more problematic.  The Explanatory Notes state that the criteria for determining what is a “philosophical belief” are that it must be:

• genuinely held;

• not simply an opinion or viewpoint;

• a belief as to a weighty and substantial aspect of human life and behaviour;

• attain a certain level of cogency, seriousness, cohesion and importance; and

• be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others.

In Nicholson v Grainger PLC and others EAT [2010] IRLR 4 (EAT) Mr. Nicholson was terminated from his position at Grainger plc, and he later filed complaints against the company for discrimination based on his faith and beliefs, as well as unjust termination. Mr. Nicholson argued that his belief about climate change and the environment was not simply an opinion, but rather constituted a philosophical belief under the relevant legislation (at the time, the Employment Equality (Religion or Belief) Regulations 2003, which has since been replaced by the Equality Act 2010); he said that his particular beliefs that “mankind is heading towards catastrophic climate change and therefore we are all under a moral duty to lead our lives in a manner which mitigates or avoids this catastrophe for the benefit of future generations, and to persuade others to do the same ”Grainger plc attempted to have Mr. Nicholson's claim thrown out of court by contending that the view that he was stating did not meet the requirements necessary to be considered a "philosophical belief." The EAT went on to clarify the legal test for a philosophical belief – in order to be a philosophical belief within the legislation (now the Equality Act 2010), 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; and

• be worthy of respect in a democratic society and not incompatible with human dignity or in conflict with the fundamental rights of others

Sex s.11 EA

The protected characteristic of sex applies to being a man or a woman. Sex discrimination in relation to pay and contractual terms of employment is covered separately by the equal pay provisions in the EA; the detail of these provisions are beyond the scope of this module.

Sexual orientation s.12 EA

(1)  Sexual orientation means a person’s sexual orientation towards:

a.    persons of the same sex;

b.    persons of the opposite sex; or

c.    persons of either sex.

As such, s.12 protects gay men, lesbians, bisexuals and heterosexuals

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Read more on protected characteristics.