The Equality Act 2010 (“EA 2010”) specifies 9 protected characteristics:

  1. Age
  2. Disability
  3. Gender reassignment
  4. Marriage and civil partnership
  5. Pregnancy and maternity
  6. Race
  7. Religion or belief
  8. Sex
  9. Sexual orientation

Age

S.5(1) EA 2010 states that age can be broadly or specifically defined – one can, for example, place people within the age ranges of 50 to 65 in the same age “group” but that an age group can be defined with regard to a specific age – people who are 65 years old.

Disability

s.6(1) covers the definition of disability under the EA 2010 – that it must be a physical or mental impairment and that the impairment must have a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities. Schedule 1 covers the tests for determining whether a person has a disability. One of the major changes that was introduced after the Disability Discrimination Act 1995 was the removal of the “capacity test” for normal day to day activities – in the EA 2010 a person does not have to prove that their inabilities fall within the range specified (such as problems with mobility, speech, hearing etc.) to show that they are disabled but each case is considered on its facts. However, the other areas of the test continue largely as before. Substantial means more than ‘trivial’ or ‘minor’, long-term is defined as for more than 12 months or for the rest of the person’s life. Even if measures are being taken to prevent the impairment (such as treatment or medication), the effects that should be looked at are those which the person would experience were they not undergoing such treatment or medication.

The EA 2010 provides a useful example of disability discrimination in the Explanatory Notes: a young woman has developed colitis, an inflammatory bowel disease. The condition is a chronic one which is subject to periods of remissions and flare-ups. During a flare-up she experiences severe abdominal pain and bouts of diarrhoea. This makes it very difficult for her to travel or go to work. This has a substantial adverse effect on her ability to carry out normal day-to-day activities. She is likely to be considered a disabled person for the purposes of the Act.

Gender reassignment

The definition of gender reassignment has changed in the EA 2010. Previously, to come under the scope of the DDA 95 the complainant had to be undergoing the medical process of reassignment. Now, the complainant can either be deemed as being covered if they are ‘non-medically’ transsexual or are considering or have undergone the medical process. For example, the Act would cover a woman who considered herself to be a man, dressed and acted as a man and is considered to be a man even though they had never undergone surgery. Alternatively, if the complainant is undergoing the ‘medical’ process they must either be considering undergoing the process, be undergoing the process or have actually undergone the process already. The category is therefore more broadly drawn. The ‘group’ includes men transitioning to women and women transitioning to men.

Marriage and civil partnership

Only those who are currently legally married or in a registered civil partnership are afforded protection.

Race

This includes:

  • Colour (being, for example, white)
  • Nationality (citizenship)
  • Ethnic origins (membership of a distinct and separate ethnic community i.e. Romany Gypsies)
  • National origins

Caste is also being considered for inclusion.

Religion or belief

Religion refers to any religion and can include the lack of religion, such as atheism. Belief refers to any religious or philosophical belief system and again includes those who have a systematic and rigorous lack of belief. The two elements therefore interlink to an extent. The boundaries of philosophical belief have, however, been widened by Grainger v Nicholson (which defined a test for philosophical belief) and the recent Maistry v BBC (although only at ET level). To be defined as a belief it must be:

  • Genuine
  • Not an opinion or viewpoint based on the present state of information available
  • Relate to a substantial aspect of human life and behaviour
  • Cogent, serious, cohesive and important
  • Worthy of respect in a democratic society

Such disparate beliefs as the ‘higher purpose of journalism’ and ‘man-made climate change’ have been fallen within the scope of the Act.

Sex

Fairly self-explanatory really.

Sexual orientation

This provision relates to a person’s sexual orientation towards:

  • persons of the same sex (i.e. homosexuals)
  • persons of the opposite sex (i.e. heterosexuals)
  • persons of either sex (i.e. bisexuals)

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The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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