The Equality Act 2010 - Protected characteristics and direct discrimination

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Overview

The Equality Act 2010 is a key piece of UK legislation designed to strengthen anti-discrimination efforts and ensure fair treatment. Legal professionals, especially those preparing for the SQE1 FLK1 exam, must thoroughly understand this Act. This article explores protected characteristics and direct discrimination, providing advanced knowledge and practical applications relevant to the SQE1 FLK1 exam.

Protected Characteristics

The Equality Act 2010 specifies nine protected characteristics, each providing legal safeguards against discrimination:

  1. Age: Protects individuals across all age groups from unfair treatment based on age.

  2. Disability: Addresses physical and mental impairments that significantly impact day-to-day activities.

  3. Gender Reassignment: Safeguards individuals undergoing, intending to undergo, or having completed gender transition.

  4. Marriage and Civil Partnership: Covers individuals in legally recognized unions.

  5. Pregnancy and Maternity: Protects women during pregnancy and up to 26 weeks after childbirth.

  6. Race: Encompasses color, nationality, and ethnic or national origins to combat racial discrimination.

  7. Religion or Belief: Includes any religion, religious belief, or philosophical belief, as well as a lack of belief.

  8. Sex: Ensures equal treatment for men and women, preventing gender discrimination.

  9. Sexual Orientation: Protects against discrimination based on attraction to the same sex, opposite sex, or both.

Legal professionals need to be familiar with these characteristics to identify and address discriminatory practices in various settings, such as employment and public services.

Direct Discrimination

Defined in Section 13 of the Equality Act 2010, direct discrimination occurs when a person is treated less favorably due to a protected characteristic. It involves three main elements:

  1. Comparator: The individual claiming discrimination must compare their treatment to that of someone without the protected characteristic but in a similar situation.

  2. Less Favorable Treatment: The individual must show they received less favorable treatment, assessed objectively.

  3. Causation: The treatment must be connected to the protected characteristic.

The "But For" Test

Courts often use the "but for" test to assess direct discrimination, asking if the treatment would have been the same without the protected characteristic. A negative response may indicate discrimination.

Example: In James v Eastleigh Borough Council [1990], the House of Lords found direct sex discrimination when a policy allowed women free entry to a pool at an earlier age than men. If Mr. James were a woman, he would have been treated equally.

Perception and Association

Direct discrimination can also arise from:

  • Perceived Characteristic: When someone is wrongly assumed to have a protected characteristic.
  • Association: When someone is discriminated against because of their connection to someone with a protected characteristic.

Example: In Coleman v Attridge Law, the European Court of Justice ruled that discrimination by association occurred when a mother's work treatment was affected by her child's disability.

Exceptions to Direct Discrimination

While generally unlawful, direct discrimination has specific exceptions under the Equality Act 2010:

  1. Genuine Occupational Requirement (GOR): Certain roles may legitimately specify a need for a particular characteristic if essential to the job. Example: A women's refuge may require female counselors to effectively support its clients.

  2. Age-Based Exception: Age discrimination can be justified if it serves a legitimate aim and is proportionate. Example: In Seldon v Clarkson Wright and Jakes, a law firm's mandatory retirement age policy was examined for its legitimacy and proportionality.

  3. Positive Action: Measures are allowed to address disadvantages tied to a protected characteristic. Example: A tech company might offer coding workshops specifically for women to balance gender representation.

Complex Scenarios and Intersectionality

Discrimination cases often involve complex situations where multiple characteristics intersect, or distinctions blur between direct and indirect discrimination.

Example: If a Muslim woman wearing a hijab is denied a front-line role due to a headwear policy, this could involve both religion and gender discrimination.

Legal Tests and Defenses

Determining direct discrimination requires applying legal tests from case law. Initially, the claimant must establish a prima facie case of discrimination. The burden then shifts to the defendant to justify their actions as legitimate and non-discriminatory. Common defenses include:

  • Occupational Requirement: Justifies a job-specific need for a characteristic.
  • Legitimate Aim: Requires the action to have a valid objective, such as safety or efficiency.
  • Proportionality: Demonstrates that actions were proportionate to the aim.

Practical Application and Exam Relevance

For the SQE1 FLK1 exam, candidates should be able to:

  1. Identify protected characteristics in complex scenarios.
  2. Apply the three-element test accurately.
  3. Analyze exceptions and justifications for potentially discriminatory practices.
  4. Distinguish direct discrimination from other prohibited actions under the Equality Act 2010.
  5. Understand how UK and EU case law shape interpretations of the Act.

Legal professionals must actively ensure equal treatment and develop inclusive practices by:

  • Drafting compliant policies to prevent discrimination.
  • Conducting due diligence to advise clients on legal obligations.
  • Managing workplace discrimination complaints with efficiency.

Conclusion

A comprehensive understanding of protected characteristics and direct discrimination in the Equality Act 2010 is essential for success in the SQE1 FLK1 exam and future legal careers. These principles are fundamental to UK equality law, impacting various contexts. Candidates should not only comprehend these concepts theoretically but also apply them to real-world situations.

Understanding direct discrimination, including its exceptions and intersections with other prohibited actions, equips aspiring legal professionals to handle the complexities of equality law. This knowledge helps them draft compliant policies, advise clients wisely, and contribute to a more equitable society.