Dismissal

How to end employment contracts without risking claims against your business

Protected characteristics

The Equality Act 2010 provides protection against discrimination and other prohibited conduct relating to certain listed characteristics which people may possess. Some protections relate specifically to only one of those characteristics.

Age

Section 5 of the Equality Act 2010 provides that, in relation to the protected characteristic of age:

  • any reference in the Act to a person who has a particular protected characteristic means a person of a particular age group

  • a reference to persons who share a protected characteristic means persons of the same age group

  • a reference to an age group means a group of persons:

  • who are all of a particular age

  • who all fall within a particular range of ages

While the most common forms of age discrimination will adversely affect those who are older, the protection applies in relation to inequality of treatment with regard to any age. Hence the possibility of discrimination against the young should equally be borne in mind. For example, any job recruitment exercise which specifies that applicants must have a certain number of years experience may indirectly discriminate against younger applicants, unless that requirement is justified.

Disability

Disability has a particular meaning in employment law terms. It may not be the same description as you may ordinarily think that attracts that description. One of the most common types of disabilities in employment law terms is now health conditions concerning mental health matters. A person has a disability, under section 6 of the Equality Act 2010, if the person has:

  • physical or mental impairment, and

  • that impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities

People who used to have a disability (but no longer have a disability) are also protected.

Certain conditions, including cancer, HIV and multiple sclerosis are automatically considered to be a disability. Other conditions, eg a tendency to steal or set fires, are excluded.

Gender Reassignment

A person has the protected characteristic of gender reassignment, under section 7 of the Equality Act 2010, if, for the purpose of reassigning his or her sex by changing physiological or other attributes of sex:

  • he or she is proposing to undergo a process (or part of a process)

  • he or she is currently undergoing a process (or part of a process)

  • he or she has undergone a process (or part of a process)

Note that in relation to such processes, there is no requirement that they be undertaken under medical supervision.

Any reference in the Equality Act 2010 to a transsexual person means a person who has the protected characteristic of gender reassignment.

Marriage & Civil Partnership

Under section 8 of the Equality Act 2010, a person has the protected characteristic:

  • of marriage if the person is married

  • of civil partnership if the person is a civil partner

Persons who are not married, or not civil partners, do not have this protected characteristic.

Race

The protected characteristic of race, under section 9 of the Equality Act 2010, includes:

  • colour

  • nationality

  • ethnic origins

  • national origins

In relation to the protected characteristic of race, any reference in the Equality Act 2010 to:

  • a person who has a particular protected characteristic means a person of a particular racial group

  • persons who share a protected characteristic means persons of the same racial group

Any reference to a racial group means a group of persons defined by reference to race. A particular racial group may, however, comprise two or more distinct racial groups.

Religion or Belief

Under section 10 of the Equality Act 2010:

  • religion means any religion, and any reference to religion also refers to a lack of religion, and

  • belief means any religious or philosophical belief, and any reference to belief also refers to a lack of belief

Sex

Section 11 of the Equality Act 2010 provides that, in relation to the protected characteristic of sex, any reference to:

  • a person who has a particular protected characteristic applies either to a man or to a woman

  • persons who share a protected characteristic means persons of the same sex

While the most common forms of sex discrimination will adversely affect women, the protection applies in relation to inequality of treatment to men as well. The possibility of discrimination against men should therefore also be borne in mind.

Sexual Orientation

Sexual orientation, under section 12 of the Equality Act 2010, is defined by reference to the gender to which someone is attracted, rather than their sexual practices or preferences. It covers gay men and lesbians, heterosexual men and women and bisexual men and women. It is defined as sexual orientation towards:

  • persons of the same sex

  • persons of the opposite sex, or

  • persons of the same or opposite sex

In relation to the protected characteristic of sexual orientation, 'a reference to persons who share a protected characteristic is a reference to persons who are of the same sexual orientation'. According to the Explanatory Notes to the Act, this means that:

a heterosexual man (ie one attracted to women) shares a sexual orientation with (ie has the same sexual orientation as) a heterosexual woman (ie one attracted to men) a gay man (ie one attracted to men) shares a sexual orientation with (ie has the same sexual orientation as) a lesbian woman (ie one attracted to women)

Pregnancy & Maternity

The Equality Act 2010 has separate provisions relating to discrimination against a woman which occurs because of her pregnancy or in connection with her maternity leave.

Section 18 of the Equality Act 2010 sets out what amounts to defines a period called the 'protected period'. That period:

  • begins when the relevant woman's pregnancy begins, and ends:

  • at the end of the additional maternity leave period, or when she returns to work after the pregnancy (if that is earlier), in cases where the woman has the right to ordinary and additional maternity leave, or

  • two weeks after the end of the pregnancy, if she does not have the right to ordinary and additional maternity leave