The Equality Act 2010 - Protected characteristics and direct...

Learning Outcomes

This article explains the nine protected characteristics under the Equality Act 2010, the legal definition and elements of direct discrimination, the comparator test, and key exceptions and justifications; it also distinguishes direct discrimination from other forms of prohibited conduct through practical scenarios and discusses perception and association, the statutory burden of proof, and the lawful application of occupational requirements and positive action.

SQE1 Syllabus

For SQE1, you are required to understand the Equality Act 2010 as it applies to legal services, employment, and service provision, with a focus on the following syllabus points:

• the nine protected characteristics defined by the Act
• the definition and elements of direct discrimination
• the use of comparators in discrimination claims
• exceptions and justifications for direct discrimination (including occupational requirements and age)
• the distinction between direct and indirect discrimination
• how to apply the legal test to practical scenarios
• perception and association in direct discrimination
• the burden of proof and vicarious liability under the Act

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is not a protected characteristic under the Equality Act 2010?
   1. age
   2. disability
   3. social class
   4. religion or belief

2. What are the three elements required to establish direct discrimination?

3. Can direct discrimination ever be justified under the Equality Act 2010? If so, for which protected characteristic(s)?

4. True or false? A person can bring a claim for direct discrimination if they are treated less favourably because they are associated with someone who has a protected characteristic.

Introduction

The Equality Act 2010 is the principal legislation in England and Wales prohibiting discrimination in employment, education, and the provision of goods and services. It defines specific protected characteristics and sets out what constitutes unlawful direct discrimination. Claims are pursued in employment tribunals (employment) and the county court (services and public functions), with remedies including damages (such as injury to feelings), declarations, and injunctions. For SQE1, you must be able to identify protected characteristics, apply the legal test for direct discrimination, and understand the main exceptions.

Protected Characteristics

The Act protects individuals from discrimination based on nine characteristics:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

Key Term: protected characteristic
A personal attribute listed in the Equality Act 2010 that is protected from discrimination, including age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

To apply these correctly:

• Age (s 5): refers to a particular age or age group. Direct age discrimination can exceptionally be justified if it is a proportionate means of achieving a legitimate aim.
• Disability (s 6 and Sch 1): a physical or mental impairment with a substantial and long‑term adverse effect on normal day-to-day activities. “Substantial” means more than minor or trivial; “long‑term” usually means likely to last at least 12 months. Progressive conditions (e.g. HIV) are deemed disabilities from diagnosis. Direct disability discrimination cannot be justified. Distinct from s 15 discrimination arising from disability (which can be justified and requires knowledge).
• Gender reassignment (s 7): protects those proposing to undergo, undergoing, or who have undergone a process to reassign sex; medical supervision is not required. Protection includes gender-fluid and non-binary people where reassignment is part of their personal journey.
• Marriage and civil partnership (s 8): covers legal marriage or civil partnership. Protection is narrower than for other characteristics and mainly arises in employment contexts; harassment provisions do not apply to this characteristic.
• Pregnancy and maternity (s 18): protects during the “protected period” and beyond in some service contexts. Treatment must not be because of pregnancy, maternity, or related illness. A comparator is not required for unfavourable treatment in many pregnancy/maternity cases.
• Race (s 9): includes colour, nationality, and ethnic or national origins. Individuals may belong to several racial groups; recognised ethnic groups include, for example, gypsies and Irish travellers.
• Religion or belief (s 10): covers any religion or philosophical belief, as well as lack of religion/belief. A philosophical belief must be genuinely held, relate to a weighty aspect of human life, attain cogency and seriousness, and be worthy of respect in a democratic society.
• Sex (s 11): covers male and female of any age. This ground is central to many pay and promotion disputes.
• Sexual orientation (s 12): orientation towards persons of the same sex, the opposite sex, or both (gay, straight, bi). Protection covers actual orientation and orientation perceived by others.

Direct Discrimination

Direct discrimination occurs when a person is treated less favourably than another because of a protected characteristic.

Key Term: direct discrimination
Less favourable treatment of a person compared to a real or hypothetical comparator, because of a protected characteristic.

There are three elements to direct discrimination:

1. Comparator: The claimant must show that a real or hypothetical person without the protected characteristic would have been treated more favourably in similar circumstances.
2. Less Favourable Treatment: The claimant must have suffered a disadvantage or detriment.
3. Causation: The less favourable treatment must be because of the protected characteristic.

The legal test is found in s 13(1) Equality Act 2010. Direct discrimination cannot be justified except in the case of age (s 13(2)).

Key Term: burden of proof
Under s 136 Equality Act 2010, once facts are established from which a court or tribunal could conclude, in the absence of an adequate explanation, that discrimination has occurred, the burden shifts to the respondent to prove that they did not commit an unlawful act.

This statutory burden-shifting is important in practice. The claimant must first establish primary facts that point to discrimination (e.g., differential treatment, patterns, comments, timing). If made out, the respondent must provide a cogent non-discriminatory explanation.

The Comparator Test

The comparator can be an actual person or a hypothetical one. The relevant circumstances must be the same or not materially different. The comparator is assessed at the time of the treatment and must exclude the protected characteristic at issue. Some provisions (such as pregnancy/maternity) use “unfavourable treatment” and do not require a comparator.

Key Term: comparator
A real or hypothetical person in similar circumstances to the claimant, but without the protected characteristic, used to assess whether less favourable treatment occurred.

Care must be taken to avoid distorted comparisons. The comparator must be chosen consistently with the context (e.g., same role, same performance metrics, same location) and without importing irrelevant differences.

The "Because Of" Test

The protected characteristic must be a reason for the treatment, but it does not have to be the sole or main reason. Motive is irrelevant; what matters is the effective cause. It is enough that the protected characteristic materially influenced the decision-maker. Evidence may include documents, witness accounts, and patterns of behaviour.

Perceived and Associative Discrimination

Direct discrimination also covers:

• Perceived discrimination: Where the discriminator wrongly perceives the person to have a protected characteristic.
• Associative discrimination: Where the person is treated less favourably because of their association with someone who has a protected characteristic.

Key Term: associative discrimination
Direct discrimination based on a person's association with someone who has a protected characteristic.

Key Term: perceived discrimination
Direct discrimination based on the discriminator's perception that a person has a protected characteristic, whether or not they actually do.

These concepts are particularly important in disability and race cases and apply across most protected characteristics (notably marriage/civil partnership is narrower in scope).

Worked Example 1.1

Scenario:
A job applicant is rejected because the employer believes she is Muslim, based on her name, even though she is not.

Answer:
This is direct discrimination by perception. The employer treated her less favourably because of a protected characteristic they believed she had.

Worked Example 1.2

Scenario:
A woman is passed over for promotion because her manager thinks she will soon go on maternity leave.

Answer:
This is direct discrimination because of pregnancy and maternity. The less favourable treatment is because of a protected characteristic. A comparator is not generally required to show unfavourable treatment linked to pregnancy/maternity.

Worked Example 1.3

Scenario:
A charity for women who have experienced domestic violence advertises for female support workers only.

Answer:
This may be lawful if being female is an occupational requirement for privacy and dignity reasons, and the requirement is proportionate.

Worked Example 1.4

Scenario:
A company applies a compulsory retirement age of 65 to all staff to “create opportunities for younger employees” and “simplify workforce planning”.

Answer:
This is direct age discrimination, but unlike other forms of direct discrimination, it may be justified if the compulsory retirement age is a proportionate means of achieving legitimate aims (e.g., workforce planning). The employer must show evidence of legitimate aims and that a fixed age is necessary and proportionate compared with less discriminatory alternatives.

Worked Example 1.5

Scenario:
An employee is disciplined for taking time off to care for his disabled child, while others are allowed flexibility for non-caring reasons.

Answer:
Treating the employee less favourably because of his association with a disabled person is direct discrimination by association. The comparator is a colleague treated more leniently in materially similar circumstances but without the relevant association.

Worked Example 1.6

Scenario:
A law firm declines to instruct a candidate barrister on a case because the senior partner assumes she is “too young to handle difficult clients”.

Answer:
This is direct age discrimination. The proper comparator is a barrister of a different age in materially similar circumstances. Unless justified under s 13(2) as a proportionate means of achieving a legitimate aim (which is unlikely on these facts), it is unlawful.

Exceptions and Justifications

Direct discrimination is generally unlawful, but there are limited exceptions:

• Occupational Requirement: If having a particular protected characteristic is an occupational requirement, and it is a proportionate means of achieving a legitimate aim (Schedule 9). This is strictly interpreted and must be essential to the nature or context of the role (e.g., authenticity in dramatic performances; privacy/dignity in intimate services; roles within organisations with an ethos requiring adherence in specific posts).
• Age: Direct discrimination because of age can be justified if it is a proportionate means of achieving a legitimate aim (s 13(2)). Legitimate aims can include workforce planning, succession, health and safety, and preserving dignity, provided evidence supports the aim and necessity.
• Positive Action: Employers and service providers may take proportionate steps to address disadvantage or underrepresentation (s 158). In recruitment and promotion, a lawful “tie-breaker” allows choosing a candidate with a protected characteristic where candidates are “as qualified as” each other (s 159), provided this is proportionate, used case-by-case, and does not amount to automatic preference. Positive discrimination (automatic or blanket preference) remains unlawful.

Key Term: occupational requirement
A legal exception allowing an employer to require a protected characteristic for a role, if it is essential and proportionate.

Worked Example 1.7

Scenario:
A public authority runs an internship scheme. Two final candidates are equally qualified. The authority chooses the candidate from an underrepresented racial group to improve representation.

Answer:
This can be lawful positive action under s 159 if the candidates are truly “as qualified as” each other and the measure is a proportionate way to overcome underrepresentation. Automatic preference or blanket policies would be unlawful.

Exam Warning

Direct discrimination can almost never be justified, except for age. For all other protected characteristics, justification is not a defence. Occupational requirements are a narrow exception and must be essential to the role and applied proportionately. Positive action permits proportionate measures to tackle disadvantage, but not automatic preference.

Related Concepts

Direct discrimination must be distinguished from:

• Indirect discrimination: Where a provision, criterion, or practice (PCP) that appears neutral puts people with a protected characteristic at a particular disadvantage, unless justified as a proportionate means of achieving a legitimate aim (s 19). A proper pool for comparison and evidence of disadvantage are essential.
• Harassment: Unwanted conduct related to a protected characteristic that violates dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment (s 26). There is no need to show intent; effect is sufficient. Note that harassment does not apply to marriage and civil partnership in some contexts.
• Victimisation: Subjecting someone to a detriment because they did a protected act or are believed to have done so (s 27). A protected act includes bringing proceedings under the Act, giving evidence, doing anything under or by reference to the Act, or making an allegation of breach. Victimisation protection applies regardless of whether the person has a protected characteristic.

As a practical overlay:

• Disability: discrimination arising from disability (s 15) prohibits unfavourable treatment because of something arising in consequence of disability, unless justified. It does not require a comparator and requires actual or constructive knowledge of disability.
• Pregnancy and maternity (s 18) often uses “unfavourable treatment” and does not require a comparator, recognising distinctive needs and protections during the protected period.

Service providers (including law firms) must comply with s 29 (provision of services) and, in disability, the duty to make reasonable adjustments. Firms are also expected by professional regulators to advance equality, diversity and inclusion and avoid unfair discrimination in accepting or delivering instructions.

Vicarious Liability and Individual Liability

Employers can be vicariously liable for discriminatory acts of employees done in the course of employment (s 109), unless they can establish the “statutory defence” of having taken all reasonable steps to prevent the misconduct (e.g., robust policies, training, swift action on complaints). Individuals can be personally liable for aiding contraventions (e.g., knowingly assisting discrimination), and those subject to victimisation need not themselves have a protected characteristic.

Worked Example 1.8

Scenario:
A firm has EDI policies but no training. A manager makes derogatory remarks about a colleague’s sexual orientation. The firm argues it had a written policy.

Answer:
The firm is likely to be vicariously liable under s 109. A bare policy is unlikely to satisfy the “reasonable steps” defence. Regular training, effective complaints procedures, and enforcement are needed to show reasonable preventative steps.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The Equality Act 2010 protects nine specific characteristics from discrimination.
• Direct discrimination is less favourable treatment because of a protected characteristic, compared to a comparator.
• The comparator can be real or hypothetical, but must be in materially similar circumstances; some provisions (e.g., pregnancy/maternity and s 15 disability) use “unfavourable treatment” without a comparator.
• The protected characteristic need only be a material reason; motive is irrelevant. The statutory burden of proof (s 136) can shift to the respondent.
• Direct discrimination includes discrimination by perception and association.
• Direct discrimination is generally unlawful, except for occupational requirements and, for age, if justified.
• Only direct discrimination based on age can be justified if it is a proportionate means of achieving a legitimate aim.
• Positive action permits proportionate measures to address disadvantage or underrepresentation; automatic preference is unlawful.
• Employers can be vicariously liable for discriminatory acts; the statutory defence requires reasonable preventative steps.
• Direct discrimination is distinct from indirect discrimination, harassment, and victimisation.

Key Terms and Concepts

• protected characteristic
• direct discrimination
• comparator
• associative discrimination
• perceived discrimination
• occupational requirement
• burden of proof