The Equality Act 2010 - Protected characteristics and direct discrimination

Learning Outcomes

After reading this article, you will be able to identify the nine protected characteristics under the Equality Act 2010, explain the legal definition and elements of direct discrimination, apply the comparator test, and recognise key exceptions and justifications. You will also be able to analyse practical scenarios and distinguish direct discrimination from other forms of prohibited conduct, as required for SQE1.

SQE1 Syllabus

For SQE1, you are required to understand the Equality Act 2010 as it applies to legal services, employment, and service provision. Focus your revision on:

• 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

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. 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.

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 Comparator Test

The comparator can be an actual person or a hypothetical one. The relevant circumstances must be the same or not materially different.

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.

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 effect.

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.

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.

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.
• Age: Direct discrimination because of age can be justified if it is a proportionate means of achieving a legitimate aim.
• Positive Action: Employers may take proportionate steps to address disadvantage or underrepresentation, but not positive discrimination.

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 1.3

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.

Exam Warning

Direct discrimination can almost never be justified, except for age. For all other protected characteristics, justification is not a defence.

Related Concepts

Direct discrimination must be distinguished from:

• Indirect discrimination: Where a neutral provision, criterion, or practice puts people with a protected characteristic at a disadvantage, unless justified.
• Harassment: Unwanted conduct related to a protected characteristic that violates dignity or creates an offensive environment.
• Victimisation: Subjecting someone to a detriment because they did a protected act (e.g., made a discrimination complaint).

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.
• 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.
• 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