Diversity and Inclusion

by Gamiel Yafai

The protected characteristics

The Equality Act 2010 brought together a number of characteristics that would be protected by law. The following are known as protected characteristics:

Age

Disability

Gender reassignment

Marriage and civil partnership

Pregnancy and maternity

Race

Religion or belief

Sex

Sexual orientation.

Age

This refers to a person or more than one person of a particular age (such as 32-year-olds) or range of ages (such as 18– to 30-year-olds). (A question for the travel industry is whether they could enforce an 18-30 holiday.)

In the UK there is no longer a mandatory retirement age. This then leads to a dilemma for employers as to when it is appropriate to insist that a worker takes retirement. As long as the decision can be objectively justified and presented in an appropriate manner to the employee, then in our opinion this would be seen as a fair approach. By way of a parallel example, individuals are required to renew their driving licences every three years after the age of 70.

Clearly, good employment practice would recommend that appropriate support is provided to individuals who may be contemplating or are deemed ready for retirement, but this is the subject of another topic.

Too young! Too old!

Assumptions are often made about a person’s ability to do a job. Have you ever been written off because you have been too young or too old and how did it feel? Clearly, however, there are situations were age matters.

Example

In the context of pregnancy, there is significant increased risk to health once a woman reaches a certain age.

Something to consider

In a restructuring situation, when a number of people are offered voluntary early retirement, there is often a loss of corporate history, which is the wealth of knowledge and expertise that an individual accumulates over the period of their employment in an organisation. This loss can be detrimental to the continued success of the organisation – when past mistakes are repeated, for example.

Disability

This refers to a person or persons who have a physical or mental impairment which has a substantial adverse impact (by relevance to the role/job in question) and this condition is long-term (likely to last 12 months or longer), and has an adverse effect on that person’s ability to carry out normal day-to-day activities. Protection extends to people to whom this definition applied even after the loss of the disability.

Disability does not necessarily equate to inability. Take Stephen Hawking, for example: he is a Cambridge scholar and Professor of Mathematics who suffers from motor neurone disease and yet has won numerous accolades for his work on black holes, theoretical cosmology, quantum gravity and Hawking radiation.

It may be a Genuine Occupational Requirement for a person to have a disability to perform a certain role: for example, being part of a consultative group to assess disability access risks or for reasons of authenticity, or playing a role of an amputee in a stage play.

Something to consider

You interviewed two people in your team for a promotion. There appeared to be nothing between them so you have selected the person without the disability. Three months later you find yourself facing an employment tribunal where the other candidate claims they were not selected because it was easier to integrate the other selected candidate into the team and less troublesome for the manager. Could you prove that you chose the person without the disability on merit?

Gender reassignment

This refers to the process of transitioning from one gender to another.

Gender is different to sex. Sex is often primarily related to the physical attributes of a male or female, whereas gender refers to the emotional, cultural and social identity of a person, which may or not include sex.

This aspect of the law applies to all people who are planning, undergoing or have (partially) completed gender reassignment.

Definitions

A transsexual person is a person who has completed gender reassignment and undergone surgery into the opposite gender.

A transvestite is a person who prefers to dress in a manner that is more conventionally attributed to the opposite sex. Transvestites are not covered under gender reassignment unless their clothing is part of a planned progression to gender reassignment.

Something to consider

What do you think is the most common question team members ask when they are informed that a colleague is undergoing gender reassignment?

Answer: what toilet will they use?

Marriage and civil partnership

Marriage is defined as a ‘union between a man and a woman’. Same-sex couples can have their relationships legally recognised as ‘civil partnerships’. Both of these statuses carry protection under UK equality legislation.

Civil partnerships exist to offer protection to couples who are in same sex partnerships, so that civil partners can now have the same rights as married couples, especially in cases where the partnership then dissolves.

It is illegal for employers to discriminate against their workers on the grounds of sexual orientation. For instance, you can’t refuse someone a job because they are gay (or because they are straight), or treat them less well than you would treat an employee of a different sexual orientation.

There are exceptions for jobs where it is necessary to be of a particular sexual orientation. This becomes a Genuine Occupational Requirement.

Something to consider

A gay clergyman has recently registered a civil partnership and this is unknown to the parish congregation. You, as the regional bishop, have just received a call from the Daily Prophet asking you what you are going to do about this gay priest and what is the church’s position on civil partnership. How do you respond and why?

Would the situation be different if this was a manager in blue chip plc?

Pregnancy and maternity

Pregnancy is the condition of expecting a baby. Maternity refers to the period after the birth; it could relate to both male and female parent and is linked to maternity leave in the employment context. In the non-work context, protection against maternity discrimination is for 26 weeks (and up to 52 weeks) after giving birth, and this includes treating a woman unfavourably because she is breastfeeding. Protection may also extend to a man being treated unfairly because he has to bottle feed their child. Protection also would extend to a man who is treated unfairly because he has elected to take maternity leave because his wife/partner has chosen to return to work.

Something to consider

You are a small employer, recruiting for a permanent post. Having selected and offered a job to a person you then find out during the ‘offer’ phone call that the person’s partner is expecting a baby and he is really looking forward to bonding with his baby in the two-week paternity leave next year. A short while later, you call the person and retract your job offer, saying you have made a mistake and contacted the wrong person.

Do you now have to consider the paternity rights of the partner as well as the maternity rights of the mother? (For more, see Employment Contracts.)

Race (ethnicity and nationality)

This refers to a group of people defined by their colour, nationality and/or ethnic or national origins. Religion is covered specifically as a separate protected characteristic.

The law also protects a white person when they are in a minority situation in their workplace.

The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group. For example, both Geordies and Cockney East Enders could be classed as English or British.

It is illegal to treat a person or persons less favourably because of their race, colour, nationality or ethnic origins, either in the workplace or in the provision of goods and services. For example, it would be inappropriate to hold a public community event in an official venue of the British National Party.

Something to consider

A pregnant woman arrives at your hospital about to give birth. She is shouting and screaming at the black gynaecologist to get out because she wants the baby delivered by a white person.

It is against the law to act on a prejudice against anyone from any race or ethnic background. The pregnant women could be losing out as the non-white gynaecologist could be best gynaecologist in the country and could spot something crucial that someone else might have missed.

Religion and belief

Religion has the meaning usually given to it, while belief includes religious and philosophical beliefs, including lack of belief (such as atheism). Generally, a belief should affect your life choices or the way you live for it to be included in the definition.

This protected characteristic does not cover formal or informal affiliation to political parties.

It is illegal to treat anybody less favourably because they are or you think they are from a particular religious or philosophical belief.

The UK is a multicultural, multi-religious environment and has seen the growth of a number of different religious places of worship since the 1960s. Many workplaces now offer prayer facilities for those workers who are practitioners of their respective faiths. Some employers have expanded this facility to ensure that this available to those with no faith or religion, but who may wish to have space for reflection and thinking. Such extension has proven to be particularly helpful to workers who may have undergone bereavement or other trauma, such as divorce. These rooms are commonly known as referred to as quiet rooms.

Something to consider

You have an employee who has recently become a Seventh Day Adventist and has come to you explaining that she can no longer work on a Saturday, which is one of your busiest days. At the same time, one of your team members has just requested leave of absence on a Saturday in a few weeks’ time because his football team is playing in the Champions League Final at Wembley.

Who takes preference? The law would suggest that religious observance would take priority.

Sex

This refers to a man or a woman. The law protects both men and women from being treated less favourably by a person or persons of the same or opposite sex. This means that the law protects men who are treated less favourably to women in given workplaces (perhaps because they are in a minority situation) and vice versa.

Historically, women have been treated less favourably than men in the workplace. Even at the time of writing, women on average earn at least 12 per cent (some studies show nearer to 18 per cent) less than men in like-for-like jobs.

The more subtle area of discrimination is in the case of part-time workers (the majority of whom are women) who cannot access the same job development and other opportunities as their full-time counterparts. An employer, for example, may ensure that training opportunities are theoretically available to all their staff, but only on the same day and at the same time each week, which happens to be outside the working hours of the part-time worker or workers.

Something to consider

A person working an employment agency was put on a final written warning and threatened with dismissal because he refused to wear a tie to work. The employer felt that it was unprofessional for him not be dressed in business attire, but was quite happy for his female colleagues to wear casual T-shirts underneath their jackets.

The employer needs to be fair and appropriate in their approach to the dress code for males and females in the work environment.

Sexual orientation

This refers to a person finding themselves drawn to someone of their own sex, the opposite sex or to both sexes (‘bi’) and possibly wishing to enter into personal, emotional and/or sexual relationships with such individuals or groups of individuals.

Many people have asserted that sexual orientation is not simply a matter of choosing how to be, but rather an inherent way of being (in other words, there is not a choice in the matter, nor is it an illness).

It is unlawful to treat someone less favourably because they are or you think they are gay, lesbian, bi or straight, either in employment or in the provision of goods and services.

Something to consider

A night club bouncer, working at a gay night club, complained to her manager that other staff were constantly taunting and teasing her because she was straight. The manager reminded her that in the current economic climate she was lucky to be in a job and anyway they were only having a bit of a joke and meant nothing by it.

The law suggests that the female bouncer has the same rights as anyone else to be treated fairly and with dignity and respect by her colleagues.