Introduction
2.1 As explained in Chapter 1, the term ‘discrimination’ is used to refer to direct discrimination, indirect discrimination and, where relevant, discrimination arising from disability, a failure to make a reasonable adjustment and pregnancy and maternity discrimination.
2.2 The Act protects people from discrimination and harassment based on protected characteristics.
2.3 The protected characteristics covered in this Code are:
- age
- disability
- gender reassignment
- pregnancy and maternity
- race
- religion or belief
- sex
- sexual orientation
The Act lists these alphabetically, and this Code adopts the same order (s.4).
2.4 As explained in Chapter 1, the protected characteristic of marriage and civil partnership is not covered by this Code (read paragraph 1.12).
2.5 The Act also protects people from victimisation when they have done a protected act. This protection applies irrespective of their protected characteristic. Read Chapter 9 for more information on victimisation and protected acts.
Age
What the Act says
2.6 The Act defines age by reference to a person's age group. An age group includes people of the same age or people within a particular range of ages (s.5).
2.7 When the Act refers to people who share the protected characteristic of age, it means that they are in the same age group.
2.8 Age groups can be large, for example, ‘people under 50’ and ‘people aged 50 and above’. An age group can also be small, for example, ‘people aged 50’, ‘people in their mid-40s’ or ‘people born in 1952’. An age group may also be relative, for example, ‘younger than A’ or ‘older than the other club members’.
2.9 Age groups can also be identified indirectly. This can be by using age-related terms such as ‘youthful’, although the meaning may differ according to the context, for example, a ‘young athlete’ as compared to a ‘young pensioner’. Another way of indirectly identifying age groups is by referencing actual or assumed physical appearances or other characteristics of certain age groups, for example, ‘grey-haired’, ‘grandmother’ or ‘grandad’.
2.10 There is some flexibility in the definition of a person’s age group and everyone can be described as belonging to several different age groups. In terms of sharing the protected characteristic of age, the relevant age group will depend on the context.
2.12 An age group may be identified by external factors which apply only to persons of a particular age group, for example, ‘people born after the start of COVID-19’ will usually mean any person born after December 2019.
2.13 Where it is necessary to compare the situation of a person belonging to a particular age group with others, the Act does not specify the age group with which a comparison should be made. It could be everyone outside the person’s age group but, in many cases, the choice of comparator age group will be more specific. This will often be led by the context and circumstances.
2.15 More detail on how to identify a comparator in cases of direct discrimination is set out in Chapter 4.
2.16 People under the age of 18 are not protected from age discrimination and harassment related to age by service providers and those exercising public functions (s.28(1)(a)).
2.17 All age groups, including those under the age of 18, are protected from age discrimination and harassment related to age by an association.
Disability
What the Act says
2.18 Only a person who meets the Act’s definition of disability has the protected characteristic of disability (s.6). When the Act refers to people who share a protected characteristic in relation to disability, it means they share the same disability (s.6(3)).
2.19 The Act says that a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (s.6(1)). Physical or mental impairment includes sensory impairments such as those affecting sight or hearing. In considering whether an individual has such an impairment, the focus should be on the things they cannot do, or can do only with difficulty, rather than on the things the person can do [footnote 1]. It is wrong to conduct an exercise balancing what a person can do against what they cannot do [footnote 2].
2.20 'Long-term' means that the impairment has lasted, or is likely to last, for at least 12 months or for the rest of the affected person’s life (Sch. 1 para 2(1)). Whether an impairment is likely to last for at least 12 months should be assessed by looking at the facts and circumstances at the date of the alleged discriminatory act [footnote 3].
2.21 An impairment which consists of a severe disfigurement is treated as having a substantial adverse effect on the ability of the person to carry out normal day-to-day activities.
2.22 Substantial means more than minor or trivial (s.212(1)). If the adverse effect of an impairment is not minor or trivial, then it must be treated as substantial [footnote 4].
2.23 'Hidden’ impairments are disabilities which are not immediately apparent, such as mental health conditions, diabetes and epilepsy. People with hidden impairments will be protected where they meet the definition in the Act.
2.26 If an impairment would be likely to have a substantial adverse effect on a person's ability to carry out their normal day-to-day activities, were it not for measures taken to treat or correct it, it is to be treated as though it has this effect (Sch. 1 para 5). This does not include the use of glasses or contact lenses.
2.28 Where an impairment has a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it can still meet the definition in the Act even if they have a coping strategy which involves avoiding that activity [footnote 5]. If a coping strategy may break down in some circumstances, such as when a person is under stress, this is relevant when considering the effects of the impairment [footnote 6].
2.29 Cancer, HIV infection and multiple sclerosis are deemed disabilities under the Act from the point of diagnosis (Sch. 1 para 6). In some circumstances, people who have a sight impairment are automatically treated under the Act as being disabled (Equality Act 2010 (Disability) Regulations 2010/2128. Reg. 7).
2.30 Progressive conditions and those with fluctuating and recurring effects will amount to disabilities in certain circumstances, even if the impairment does not currently have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities (Sch. 1 para 2(2) and 8).
2.31 Certain conditions are not regarded as disabilities under the Act (Equality Act 2010 (Disability) Regulations 2010/2128. Reg. 3 and 4). These are:
- an addiction to, or dependency on, alcohol, nicotine, or any other substance, except where addiction followed medical prescription or treatment
- seasonal allergic rhinitis such as hay fever, except where it aggravates another condition
- a tendency to set fires, steal or physically or sexually abuse another person
- exhibitionism
- voyeurism
2.32 In most circumstances, a person will have the protected characteristic of disability if they have had a disability in the past, even if they no longer have the disability, except in relation to Part 12 (transport) and section 190 (improvements to let dwelling houses) (s.6(4)).
2.33 Non-disabled people are protected against direct disability discrimination only where they are perceived to have a disability or are associated with a disabled person (read paragraphs 4.48 to 4.52). In some circumstances a non-disabled person may be protected where they experience harassment (read Chapter 8) or some other unlawful act such as victimisation (read Chapter 9).
2.34 For a fuller understanding of the concept of disability under the Act, reference should be made to Appendix to this Code.
Gender reassignment
What the Act says
2.35 The Act defines gender reassignment as a protected characteristic (s.7(1)). People who are proposing to undergo, are undergoing or have undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of sex have the protected characteristic of gender reassignment.
2.36 For the purposes of this Code, a reference to a trans person is a reference to a person who has the protected characteristic of gender reassignment (s.7(2)).
2.37 The Act uses the term ‘transsexual’ for individuals who have the protected characteristic of gender reassignment. We recognise that some people consider this term outdated, so we have used the term ‘trans’ to refer to a person who has the protected characteristic of gender reassignment. This refers only to persons who fall within the Act’s definition of gender reassignment, it does not include persons who may identify as trans or transgender but are outside of this definition.
2.38 A trans person is protected against gender reassignment discrimination and harassment at any stage in their transition process, from proposing to reassign sex, undergoing a process of reassignment, to having completed it. A trans person does not need to have undergone medical treatment or surgery to be protected. It also does not matter whether a trans person has applied for, or obtained, a Gender Recognition Certificate (GRC), which is the document that confirms the change of a person’s legal sex.
The Act protects people from victimisation when they have done a protected act. This protection applies irrespective of their protected characteristic. Read Chapter 9 for more information on victimisation and protected acts.
2.41 There is no minimum age for the protected characteristic of gender reassignment which means that children and young people are protected if they are proposing to undergo, are undergoing, or have undergone a process of gender reassignment.
2.42 People with non-binary or gender fluid identities will only be protected if they meet the definition of gender reassignment as set out in the Act. They may also be protected against discrimination by perception (read paragraph 4.51 and paragraph 4.52).
2.44 A person who presents in a gender non-conforming way, such as ‘cross-dressing’, will be protected where they do so as part of a process of reassigning their sex. The Act does not define what is meant by reassigning sex. It does not have to be a medical process - although some people will take medical or surgical steps - but it is likely to at least involve more permanent changes such as changing one’s pronouns and consistently dressing and presenting as the opposite sex. A person presenting in a gender non-conforming way for some other reason does not have the protected characteristic of gender reassignment. However, they may be protected against harassment, and discrimination by perception (read paragraph 4.51 and paragraph 4.52).
2.46 Where an individual has gender dysphoria and the condition has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, they will also be protected under the disability discrimination provisions of the Act (read Chapter 6 and Chapter 7).
Gender Recognition Certificates
2.47 The Gender Recognition Act 2004 (GRA) provides that where a person holds a GRC, their legal sex becomes the same as their acquired gender and they can obtain a new birth certificate reflecting this legal sex. Refer to the GRA for full details of the criteria for obtaining a GRC and its legal effect.
A trans person does not need a GRC to be protected from discrimination because of gender reassignment.
2.48 Neither the GRA nor the Act directly prohibit asking for proof of someone’s sex at birth or for proof of their legal sex. However, onward disclosure of that information in some circumstances may be a criminal offence. Service providers, those exercising public functions and associations should consider individuals’ rights to privacy when considering whether it is reasonable and necessary to ask for evidence of a person’s legal or birth sex and should not routinely request this information unless it is necessary for a specific purpose. Where documentary proof of legal sex is requested, a person’s birth certificate (and if necessary accompanying photographic identification) should be sufficient confirmation.
Read also the Data Protection Act 2018 and UK General Data Protection Regulations which deal with processing personal data.
Pregnancy and maternity
What the Act say
2.49 The Act lists pregnancy and maternity as a protected characteristic (s.4). Pregnancy and maternity discrimination are considered at paragraphs 4.53 to 4.72.
Race
What the Act says
2.50 The Act defines ‘race’ as including colour, nationality and ethnic or national origins (s.9(1)).
2.51 A person has the protected characteristic of race if they fall within a particular racial group (s.9(2)). A racial group can also be made up of two or more distinct racial groups. Read paragraphs 2.61 to 2.64 for the meaning of ‘racial group’.
Nationality
2.52 Nationality (or citizenship) is the specific legal relationship between a person and a state through birth or naturalisation (s.9(1)(b)). It is distinct from national origins (read paragraphs 2.58 to 2.60).
Ethnic origins
2.53 Everyone has an ethnic origin, but the provisions of the Act only apply where a person belongs to an ‘ethnic group’ as defined by the courts (s.9(1)(c)). This means that the person must belong to an ethnic group which regards itself and is regarded by others as a distinct and separate community because of certain characteristics. These characteristics usually distinguish the group from the surrounding community.
2.54 There are two essential characteristics which the courts have established an ethnic group must have: a long-shared history and a cultural tradition of its own [footnote 7]. In addition, an ethnic group may have one or more of the following characteristics:
- a common language
- a common literature
- a common religion
- a common geographical origin
- being a minority or an oppressed group
2.55 An ethnic group or national group could include members new to the group, for example, a person who marries into the group. It is also possible for a person to leave an ethnic group.
2.56 The courts have found that the following are protected ethnic groups:
- Sikhs
- Jewish people
- Romany Gypsies and European Roma
- Irish Travellers
- Scottish Gypsies / Travellers
This is not an exhaustive list of the ethnic groups that are likely to be protected.
2.57 The courts have also confirmed that ‘ethnic origins’ is a wide and flexible phrase that can include a person’s caste [footnote 8].
Caste is a form of identity that is used as a basis for social differentiation. It is usually considered to be acquired by birth and sustained by endogamy (in which marriage is restricted to individuals of the same caste).
National origins
2.58 National origins must have identifiable elements, both historic and geographic, which at least at some point in time indicates the existence or previous existence of a nation (s.9(1)(c)). For example, as England and Scotland were once not a part of Great Britain or the United Kingdom the English and the Scots have separate national origins. National origins may include origins in a nation that no longer exists (for example, Czechoslovakia) or in a ‘nation’ that was never a nation state in the modern sense.
2.59 National origin is distinct from nationality. For example, people of Chinese national origin may be citizens of China, but many are citizens of other countries.
2.60 A person’s own national origin is not something that can be changed, though national origin can change through the generations.
Meaning of 'Racial Group'
2.61 A racial group is a group of people who have or share a colour, nationality or ethnic or national origins (s.9(3)). For example, a racial group could be ‘British’ people. All racial groups are protected from unlawful discrimination and harassment under the Act.
2.62 A person may fall into more than one racial group. For example, a ‘Nigerian’ person may be defined by colour, nationality or ethnic or national origins.
2.63 A racial group can be made up of two or more distinct racial groups (s.9(4)). For example, a racial group could be ‘black Britons’ which would encompass those people who are both black and who are British citizens. Another racial group could be ‘South Asian’ which may include Indians, Pakistanis, Bangladeshis and Sri Lankans.
2.64 Racial groups can also be defined by exclusion. For example, the courts have accepted that ‘non-UK nationals’ constituted a class of people sharing a racial characteristic.
Religion or belief
What the Act says
2.65 The protected characteristic of religion or belief includes any religion and any religious or philosophical belief. It also includes a lack of any such religion or belief (s.10(1) and (2)).
2.66 For example, Christians are protected against discrimination because of their Christianity and non-Christians are protected against discrimination because they are not Christians, irrespective of any other religion or belief they may have or any lack of one.
2.67 The meaning of religion and belief in the Act is broad and consistent with Article 9 of the European Convention on Human Rights (which guarantees freedom of thought, conscience and religion).
Meaning of religion
2.68 ‘Religion’ means any religion and includes a lack of religion (s.10(1)). The term ‘religion’ includes the more commonly recognised religions in the UK such as the Baha’i faith, Buddhism, Christianity, Hinduism, Islam, Jainism, Judaism, Rastafarianism, Sikhism and Zoroastrianism. It is for the courts to determine what constitutes a religion.
2.69 A religion does not need to be mainstream or well known to gain protection as a religion. However, it must have a clear structure and belief system. Denominations or sects within religions, such as Methodists within Christianity or Sunnis within Islam, may be considered a religion for the purposes of the Act.
Meaning of belief
2.70 Belief means any religious or philosophical belief and includes a lack of belief (s.10(2)).
2.71 ‘Religious belief’ goes beyond beliefs about and adherence to a religion or its central articles of faith and may vary from person to person within the same religion.
2.72 A belief which is not a religious belief may be a philosophical belief. Examples of philosophical beliefs include Humanism, Atheism and Ethical Veganism.
2.73 A belief does not need to include faith or worship of a God or Gods but must affect how a person lives their life or perceives the world.
2.74 For a philosophical belief to be protected under the Act:
- it must be genuinely held
- it must be a belief, and not an opinion or viewpoint based on the present state of information available
- it must be a belief as to a weighty and substantial aspect of human life and behaviour
- it must attain a certain level of cogency, seriousness, cohesion and importance
- it must be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others
2.75 The threshold for a belief to be considered worthy of respect in a democratic society is relatively low. The belief would only not be protected under the Act if it involves a very grave violation of the rights of others, which is tantamount to the destruction of those rights [footnote 9].
Manifestation of religion or beliefs
2.77 While people have an absolute right to hold a religion or belief under Article 9 of the European Convention on Human Rights, manifestation of that religion or belief is a qualified right which may in certain circumstances be limited. For example, it may need to be balanced against other Convention rights such as the right to respect for private and family life (Article 8) and the right to freedom of expression (Article 10).
2.78 Manifestations of a religion or belief could include:
- treating certain days as days for worship or rest
- following a certain dress code
- following a particular diet
- expressing gender critical views online
- carrying out or avoiding certain practices
Placing limitations on a person’s right to manifest their religion or belief may amount to unlawful discrimination.
2.80 A person does not have to prove that the manifestation of their religion or belief is a core component of the religion or philosophical belief they follow. It may be a means by which they choose to express their adherence to their religious belief. However, there must be sufficiently close and direct connection between the manifestation and the underlying belief [footnote 10].
Sex
What the Act says
2.81 Sex is a protected characteristic and refers to a male or a female of any age. In relation to a group of people it refers to either men and / or boys, or women and / or girls (s.11(a) and (b) and s.212(1)).
2.82 A comparator for the purposes of showing sex discrimination will be a person of the opposite sex. Sex does not include gender reassignment (read paragraphs 2.35 to 2.48) or sexual orientation (read paragraphs 2.84 to 2.88).
2.83 There are specific provisions which apply where the treatment of a woman is because of her pregnancy and maternity, or because she is breastfeeding (read paragraphs 4.53 to 4.72) (s.13(6)(a) and s.13(7)).
Sexual orientation
What the Act says
2.84 Sexual orientation is a protected characteristic (s.12(1)). It means a person’s sexual orientation towards:
- persons of the same sex (for example, the person is a gay man)
- persons of the opposite sex (that is, the person is heterosexual) or
- persons of either sex (for example, the person is bisexual)
2.85 Sexual orientation relates to how people feel as well as their actions.
2.86 Sexual orientation discrimination includes discrimination because someone is of a particular sexual orientation, and it also covers discrimination connected with manifestations of that sexual orientation. These may include someone’s appearance, the places they visit or the people they associate with.
2.87 When the Act refers to the protected characteristic of sexual orientation (section s.12(2)), it means the following:
- a reference to a person who has a particular protected characteristic is a reference to a person who is of a particular sexual orientation
- a reference to people who share a protected characteristic is a reference to people who are of the same sexual orientation
2.88 Gender reassignment is a separate protected characteristic and unrelated to sexual orientation, despite often being grouped together (for example under the acronym ‘LGBTQ+ people') (read paragraph 2.35).
Restrictions on protection under the Act
2.89 The Act contains several exceptions to the protection it provides against discrimination, harassment and victimisation in the provision of services, exercise of public functions and the activities of associations. These are covered elsewhere in this Code.
Chapter 2 footnotes
- Elliott v Dorset County Council [2021] IRLR 880
- Elliott; Ahmed v Metroline Travel Ltd [2011] 2 WLUK 278
- All Answers Ltd v W [2021] EWCA Civ 606
- Aderemi v London and South East Railway Limited [2013] ICR 591 at §14 and Elliott at §28
- Elliott v Dorset County Council [2021] IRLR 880
- Elliott v Dorset County Council [2021] IRLR 880
- Mandla v Dowell Lee [1983] 2 AC 548
- Chandhok v Tirkey [2015] ICR 527
- Forstater v CGD Europe [2021] ICR 1 and Mackereth v DWP [2022] EAT 99
- Mba v Mayor & Burgesses of the London Borough of Merton [2013] EWCA Civ 1562 and Eweida, Chaplin, Ladele & McFarlane v United Kingdom (2013) applications numbers 48420/10, 59842/10, 51671/10 and 36516/1
Page updates
Published:
2 October 2024
Last updated:
2 October 2024