Services and Public Functions under the Equality Act 2010: Protected Characteristics

Wednesday 6 October 2010

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Services and Public Functions under the Equality Act 2010: Protected Characteristics

Part 3 of the Equality Act 2010

One of the key concepts under the 2010 Act is that of ‘protected characteristics’. These are found in Part 2, Chapter 1, ss 4-12 of the Act. As set out in s 4, the protected characteristics are:

(a) age,

(b) disability,

(c) gender reassignment,

(d) marriage and civil partnership,

(e) pregnancy and maternity,

(f) race,

(g) religion or belief,

(h) sex, and

(i) sexual orientation

However, for the purposes of Part 3, Services and Public Functions, the application of the protected characteristics is currently restricted in the following ways:

Age:

1. The provisions of Part 3 came into force on 1 October 2010 by the Equality Act 2010 (Commencement No. 4, Savings, Consequential, Transitional, Transitory and Incidental Provisions and Revocation) Order 2010, article 2(3), except so far as they apply to the protected characteristic of age.

2. If and when the provisions of Part 3 come into force insofar as they relate to the protected characteristic of age, then Part 3 does not, in any event, apply to the protected characteristic of age so far as it relates to persons under 18, s 28(1).

Marriage and civil partnership:

Part 3 does not apply to the protected characteristic of marriage and civil partnership, s 28(1).

Religion or belief:

Regarding the application of the provision made in respect of harassment (a specified form of prohibited conduct) and the duty imposed by Part 3 on a service-provider and a person exercising a public function to refrain from harassment, religion or belief is not a relevant protected characteristic, s 29(8).

Sexual orientation:

Regarding the application of the provision made in respect of harassment (a specified form of prohibited conduct) and the duty imposed by Part 3 on a service-provider and a person exercising a public function to refrain from harassment, sexual orientation is not a relevant protected characteristic, s 29(8).

Combined discrimination: dual characteristics:

Provision for combined discrimination (dual characteristics) is made in s 14 of the 2010 Act. The relevant protected characteristics are:

(a) age (but see above in relation to Part 3 (services and public functions));

(b) disability;

(c) gender reassignment;

(d) race;

(e) religion or belief;

(f) sex; and

(g) sexual orientation.

Indirect discrimination:

Provision for indirect discrimination is made in s 19 of the 2010 Act. The relevant protected characteristics are:

(a) age (but see above in relation to Part 3 (services and public functions));

(b) disability;

(c) gender reassignment;

(d) marriage and civil partnership (but this does not apply in relation to Part 3 (services and public functions), see above);

(e) race;

(f) religion or belief;

(g) sex; and

(h) sexual orientation.

Innovation:

In relation to Part 3 (services and public functions), the inclusion among the protected characteristics of age (but see above), gender reassignment, and pregnancy and maternity as discrete, specified, items is novel.

Further matters:

In addition to the matters specified above Schedule 3 (service and public functions: exceptions), Schedule 22 (statutory provisions) and Schedule 23 (general exceptions) of the 2010 Act make further provision and should also be consulted.

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