Introduction
Discrimination involves treating people differently, but not all forms of discrimination are unlawful. For example, differences in pay based on skills and experience are legal. However, it is illegal to discriminate against individuals based on protected characteristics such as age, sex, disability, sexual orientation, race, religion or belief, marital status, gender reassignment, pregnancy, or maternity. The Equality Act 2010 establishes guidelines to ensure a fair workplace where employees are judged based on their skills and abilities.
The Equality Act 2010
As an employer of Personal Assistants (PAs), you must comply with the Equality Act 2010 to protect employees from discrimination. The Act ensures fair treatment across all aspects of life, particularly in the workplace. It prohibits unfair treatment based on nine protected characteristics (see section 1.1).
Employment decisions—such as hiring, training, and promotions—should be based solely on the employee’s aptitude and performance. This includes all employees, whether they work full-time, part-time, or temporarily.
What are the protected characteristics?
The following characteristics are protected under the Act, meaning it is unlawful to discriminate against someone on these grounds:
Note: Discrimination based on these characteristics may be permitted only if it is a Genuine Occupational Requirement (GOR).
What does ‘employment’ include?
For these purposes employment includes:
- recruitment (wording of adverts, interview and selection processes)
- terms of employment/ employment contract (inc. pay and holiday)
- training and development
- managing and supervision
- promotion
- termination of employment (inc. provision of references)
Self-employed individuals providing services to you may also be considered employees under the Act.
Discrimination
Discrimination refers to treating someone unfairly or differently. While treating people differently based on skills or qualifications is acceptable, it is illegal to treat someone unfavourably because they have a protected characteristic. Below are the seven key types of discrimination.
Direct discrimination
…occurs when an employee is treated less favourably directly because of a protected characteristic that they possess. There are two further types of direct discrimination- discrimination by association and perception discrimination (see below).
Example:
Peter, the boss of a building company, recruits a man rather than a woman for an administrative job in the site office because he assumes that women do not have the strength to do the job. This is direct sex discrimination.
Discrimination by association
…occurs when an employee is treated less favourably because they associate with someone who possesses a protected characteristic.
Example:
June’s promotion is withdrawn after she reveals her mother, who lives with her, is disabled. This is discrimination by association based on disability.
Perception discrimination
… occurs when someone is treated unfairly because others believe they have a protected characteristic, even if they do not.
Example:
Jim, who is 45 but looks much younger, is excluded from representing his company because the director assumes he lacks experience. This is age discrimination.
Indirect discrimination
Happens when a rule or policy applies to everyone but disadvantages certain groups
Example:
Amy’s employer enforces shift patterns that she cannot comply with due to childcare responsibilities, indirectly discriminating against her on the basis of sex.
Harassment
…is defined as ‘unwanted conduct related to a protected characteristic which violates an individual’s dignity or creates a negative or offensive environment for that individual’. Employees can complain of such behaviour even if it is not directed at them.
Example:
Tom, who has a same-sex partner, is teased at work with female nicknames. This is harassment based on sexual orientation.
Third party harassment
Employers may be held liable if employees face harassment by third parties (e.g., customers) and the employer fails to act.
If harassment has occurred on two previous occasions, and as an employer you are aware of it and have not taken reasonable steps to prevent it.
Example:
Leon, who has a strong Nigerian accent, tells his manager, David, that he feels upset and humiliated by a customer who continues to make derogatory remarks about Africans in his presnece. If David does nothing to try to stop this, he would be liable for racial harassment. This is an example of third-party harassment.
Victimisation
Occurs when an employee is treated unfairly because they have made or supported a complaint or raised a grievance under the Equality Act or they are suspected of doing so. An employee is not protected from victimisation where they maliciously make or supports an untrue complaint.
Example:
Ann files a complaint about sex discrimination. Her colleague Brian supports her and both are denied promotion. This is victimisation.
Genuine occupational requirements
In certain limited circumstances it is acceptable to discriminate in your employment of PAs on the basis of any of the protected characteristics listed above if you can show that this is a genuine occupational requirement (GOR). The exception applies where possessing or not possessing one of the protected characteristics is a genuine requirement for the work you are offering.
Justifying a GOR
You must be able to justify a GOR. The Equality Act 2010 states that ‘an employer does not illegally discriminate by applying a requirement to have a particular protected characteristic, if the employer can show that (having regard to the nature or context of the work):
- it is an occupational requirement
- the application of the requirement is a proportionate means of achieving a legitimate aim, and
- the applicant/employee does not meet it (or the employer has reasonable grounds for not being satisfied that the applicant/employee meets it).’
The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext. In addition, applying the requirement must be proportionate so as to achieve a legitimate aim.
A good example of a GOR is discrimination on the basis of sex. If you need to employ a PA to assist you with personal care e.g. washing, dressing etc it would usually be lawful to discriminate on the basis of sex by requiring that the PA be of the same sex as you. The legitimate aim of this it to maintain and protect your privacy and decency and personal care is crucial to the post.
Key facts for employers
If you would like to discuss this aspect of PA employment in more detail your adviser will be happy to provide you with more information on this topic. Alternatively please call our Information and Advice Service or your employers liability insurance company who will be happy to discuss this with you.
Updates to the Equality Act 2010?
Age: On the 1st October 2011 the default retirement age was scrapped allowing individuals to continue working. Certain jobs however may restrict the age a person chooses to retire at. i.e. if the job is physically demanding.
Disability: the act makes it easier than before to demonstrate for an individual to demonstrate that they are disabled. An individual no longer has to show that their impairment affects a particular capacity. Under the act someone is disabled 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’.
- ‘substantial’: more than minor or trivial
- ‘long-term’: the effect of the impairment has lasted or is likely to last for at least twelve months (there are special rules covering recurring or fluctuating conditions)
- ‘normal day-to-day activities’: e.g. eating, washing, walking and shopping
Protection from discrimination arising from disability: It is discriminatory to treat someone unfavourably because of something connected to their disability i.e. a dyslexic PA’s tendency to make spelling mistakes or where a user of an assistance or guide dog is discriminated against because of their dog, not because of their disability. This type of discrimination is illegal where the employer knows or should reasonably have known about the disability.
Pre-employment enquiries about disability and health: except in the situations specified below an employer must not make such checks prior to the individual being offered the job. How you can do this where you are:
- Asking so that reasonable adjustments can be made to enable someone to attend interview.
- Finding out whether a job applicant would be able to undertake a function that is intrinsic (essential) to the job.
- Supporting positive action in employment for disabled people.
Gender reassignment: an individual no longer has to be under medical supervision for them to be protected. It is illegal to treat transsexual people less favourably because they are absent from work because they are undergoing gender reassignment than if they were absent due to illness or injury.
Race: The definition currently includes colour, nationality, ethnic origins and national origins.
Sex: equal pay. The act makes it illegal to prevent or restrict employees from having a discussion with each other to establish if differences in pay exist. However an employer can require their employees not to discuss pay rates outside the workplace.
Updates to the Equality Act 2010 (2023)
Key changes include:
- Broader disability protections to cover equal participation in daily workplace activities.
- Breastfeeding-related discrimination is clarified as sex discrimination.
- Enhanced indirect discrimination protections, even by association.
- A new ‘single source’ rule for equal pay comparisons.
- Protections against unfavourable treatment after maternity leave.
- Recruitment discrimination protections, even outside active hiring cycles.