The Equality Act offers protection from discrimination in relation to the characteristics a person may have. Those characteristics are:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
Discrimination happens if you are singled out and treated differently because of one of those characteristics (direct discrimination) or if you are unfairly put in disadvantage because of a policy or practice that which applies to everyone (indirect discrimination).
It is important to know that the protection that is given by the Equality Act also applies if you are treated differently because you are associated with someone of a specific age or age range (discrimination by association) or because someone thinks you have a characteristic (discrimination by perception). All of those are prohibited conducts that the Equality Act offers protection against. The short video below from ACAS gives a good overview of how the ‘nine protected characteristics’ of the Equality Act 2010 apply in the workplace:
Please note that the protection given to individuals by the Equality Act 2010 however applies in a range of situations and contexts such as:
- At work
- When using transport
- When joining clubs or association
- Using businesses and others organisations providing services and goods (shops, restaurants, and cinemas).
- When using public services – e.g. NHS hospitals, GPs, schools, colleges and further education
- When contacting public bodies – e.g. Fife Council, Scottish Government
The law applies in specific ways for each of the protected characteristics:
The Equality Act 2010 does not define a specific age group that is protected. Age can be understood as narrow or wide (younger people, older people), or it can described as relative to someone else (older / younger than); or it could be a specific age or age range (16, under 21 or 65+).
What matters is that you must not be discriminated against because of your age.
The Equality Act also applies if you are treated differently because you are associated with someone of a specific age or age range (discrimination by association) or because someone thinks you are a specific age or age range (discrimination by perception).
Ageism is negative in that it creates barriers between age groups playing equal parts in society. As a rule of thumb, everyone should avoid using language that stereotypes or implies that a particular age group is more or less able. Inclusive language is sensitive to the entire age and when relative terms such as ‘older’ and ‘younger’ are used, those should be in specific contexts so as not to discriminate.
The Equality Act defines disability as physical or a mental condition which has a long-term impact on your ability to do normal day to day activities.
If you have a current diagnosis of a progressive condition such as HIV, cancer, Parkinson’s Disease (PKD) or multiple sclerosis (MS), the Equality Act considers this a disability, even if you are able to carry out normal day to day activities.
This is also relevant if you had a disability in the past from which you have recovered, such as a following recovery from cancer treatment or a mental health condition.
What matters is that you must not be discriminated against because of your disability. This also applies if you are discriminated against because you are associated with someone who has a disability (discrimination by association) or because someone thinks you have a disability (discrimination by perception).
The Equality Act allows for positive action in the case of disability, which means is it not discriminatory to treat a disabled person more favourably than someone who is not disabled (or treating persons with a different disabilities differently).
For example, FCE is currently offering Modern Apprenticeships placements with Accessible Fife that recruits specifically with young people with disability long-term health conditions and/or disabilities. In this situation, it is not discriminatory to not open the recruitment process to non-disabled people; it is an example of positive action.
Gender reassignment is the process by which the appearance of a person’s gender is changed. It is a personal/social process that sometimes also involves gender reassignment surgery.
The Equality Act defines a transgender person or trans person as a person whose gender identity differs from the gender that was assigned at birth.
Protection from gender reassignment discrimination does not require a person to have undergone treatment or gender reassignment surgery. This is because making the transition from the gender assigned at birth is a recognised and protected characteristic from the personal and/or social level.
The Equality Act applies at any stage of the process, from proposing gender reassignment, to undergoing personal and social transition, that is adopting the identity of their chosen gende. It also applies for when undergoing medical reassignment, to having completed the process of transition, or having started the medical process and having decided to stop it.
‘Trans’ or ‘transgender’ people are sometimes associated with people who cross-dress or vary in the expression their gender identity, however under the Equality Act they are not considered transgender as this does not imply they intend on making a gender transition.
The Equality Act defines the protected characteristic of marriage and civil partnership as applying to people who are legally married or who are in a civil partnership. Marriage is legaly recognised between partners of different sex (e.g. a man and a woman) or of the same sex. Civil partnership is between partners of the same sex. In Scotland, the Scottish Parliament has legislated to allow same-sex marriages (see Marriage and Civil Partnership (Scotland) Act 2014).
This characteristic does not apply to people who are single, are engaged to be married and/or living with someone as a couple. Also, it does not apply to people who are divorced, have dissolved their civil partnership or widowed.
Marriage and civil partnership discrimination occurs when you are treated differently at work because you are married or in a civil partnership. The Equality Act protects individuals against direct and indirect discrimination (and also victimisation) at work that happens because they are married or in a civil partership.
The Equality Act protects a pregnant woman from being discriminated against from start of the period of becoming pregnant until the end of her maternity leave..This period of time is protected under the, however it is considered to end when she returns to work after giving birth, if that take place before the end of her official maternity leave.The extent of pregnancy and maternity protection under the Equality Act applies also at the recruitment stage, where an employer must employ the best candidate for a post and not discriminate because that person is pregnant or about to take maternity leave. It is also discrimination to reject a candidate because of being likely to become pregnant (note that this would count as sex discrimination).
The Equality Act defines sexual orientation as including how you choose to express your sexual orientation, such as through your appearance or the cultural and social activities you choose, such as places you visit.The Equality Act says you must not be discriminated against because you are:
- heterosexual, gay, lesbian or bisexual.
- connected to someone who has a particular sexual orientation. This is known as discrimination by association.
Are there exceptions?
The Equality Act also allows Positive Action which enables public bodies to provide additional benefits to some groups of people to tackle disadvantage e.g. providing additional lessons for Gypsies and Travellers attending local schools. Where services are concerned, actions which would otherwise be unlawful may be allowed where they are objectively justified for the provision of the service.
Some examples include (examples below based on EHRC case studies and case law):
Age restrictions: retail
Where the law restricts by age the supply of certain services (such as the sale of alcohol or tobacco), a service provider can refuse to serve persons who appear to be younger and cannot provide satisfactory proof of age, provided the service provider has displayed a sign notifying the public.
Age restrictions: Travelcards or travel agents
A service provider may limit certain holiday services to a defined age group if an essential feature of the holiday is to bring together persons of that age (such as SAGA or 18-30 holidays) or have Concessions in respect of a service to persons of a particular age group (such as discounts for pensioners or schemes such as the young persons’ railcard)
(including banking, credit, insurance, pension services etc) When a service provider undertakes an assessment of risk for the purposes of providing a financial service, it may only take account of a person’s age in so far as this is relevant to the risk and where the information is obtained from a source that it is reasonable to rely on.
Religious marriage and civil marriage
Where one of a couple is transgendered (or is reasonably believed to be so) and has acquired his or her gender under the Gender Recognition Act 2004, equality law does not impose any obligation on a person to solemnize a marriage where it would be contrary to their religious convictions.In Scotland this applies to a Minister of the Church of Scotland, or a minister, clergyman, pastor, priest, or any other person recognized by a religious body and entitled to solemnize a religious marriage, however the exemption does not apply to civil marriage registrars and other protected characteristics of one or both of the couple (e.g. mixed couple turned away because of their different ethnic origins is race discrimination and would not fall within the exception).
If you are looking for practical information on how the Equality Act might be relevant to you, click on the link below to our: