Must-Know Information for Employers: Protected Characteristics
Protected characteristics: what SME leaders really need to know
As a small business leader, you've probably heard about "protected characteristics," but do you know exactly what it means for your business? If you're employing people, even just one or two, understanding this topic can save you costly headaches down the road.
First things first - what exactly are protected characteristics?
UK employment law under the Equality Act 2010 identifies specific attributes where discrimination at work is unlawful. These include:
Age
Disability
Race
Gender reassignment
Marriage or civil partnership
Religion or belief
Pregnancy or maternity
Sex
Sexual orientation
Simply put, if you make employment decisions based on these factors, or let them influence how someone is treated at work, you're stepping onto dangerous ground legally.
What counts as discrimination?
Discrimination might sound obvious, but it's not always clear-cut. For SMEs, discrimination can occur through:
Direct discrimination: treating someone differently and unfairly because of one of the protected characteristics, like dismissing an employee simply because they're pregnant.
Indirect discrimination: applying a rule or policy equally to all staff but inadvertently placing some people at a disadvantage. For instance, scheduling mandatory meetings at a time that consistently conflicts with religious practices.
Harassment and victimisation: creating an uncomfortable, humiliating, or hostile work environment for someone because of these characteristics, or treating someone unfairly because they've raised a complaint.
The recruitment trap
Here's something SMEs often miss: protection against discrimination applies before you even employ someone. That's right, even during recruitment.
For example, a few businesses recently faced costly claims after retracting job offers. Candidates successfully argued that offers were withdrawn because of protected characteristics. These employers discovered – painfully - that pulling a job offer can result in claims similar to unfair dismissal, even if the candidate hasn't started work yet.
Real-world example: sexual orientation and dismissal
Recently, an SME faced an allegation of discrimination after dismissing a new employee during their probationary period. The employee claimed their sexual orientation was the real reason behind the termination, rather than their actual poor performance.
Fortunately, in this case, the employer could clearly evidence performance issues and demonstrate a transparent and objective decision-making process. Without robust documentation and clear reasoning, it could have become an expensive legal matter.
The key takeaway? Always document decisions and reasons clearly - especially during probation or short service periods - to protect your business.
Your responsibility for employee behaviour
You might assume you're only responsible for your own behaviour as an employer, but you're also liable for discriminatory behaviour by your employees towards each other.
For example, since October 2024, you have a legal obligation to actively prevent sexual harassment. If harassment occurs and you can't demonstrate clear prevention measures, like training or clear policies, you could find yourself responsible too.
Practical steps to prevent discrimination
The good news: discrimination can be prevented with straightforward, practical measures:
Clear HR policies
Develop and clearly communicate policies on equality and discrimination. Your team needs to understand what acceptable behaviour looks like.Regular training
Train your team, particularly your line managers, on how to recognise and respond appropriately to discrimination and harassment.Use external expertise
Partnering with an experienced HR consultant can provide the support SMEs often lack internally, helping avoid costly issues before they arise.
We're here to help SMEs
Unsure if you're handling protected characteristics correctly? Want guidance tailored specifically for your business?
Book a consultation today. Our expert team offers practical HR advice designed specifically for SME leaders, ensuring your business stays on the right side of employment law.
