Situations where equality law is different
Sometimes there are situations where equality law applies differently. This guide refers to these as exceptions.
There are two exceptions which relate to managing workers and which apply to all employers:
- The possibility that direct age discrimination can be objectively justified.
- Health and safety considerations in relation to pregnancy and maternity.
We only list the exceptions that apply to the situations covered in this guide. There are more exceptions which apply in other situations, for example, when you are applying for a job. These are explained in the relevant guide in the series.
In addition to these exceptions, equality law allows employers to:
- Use voluntary positive action in the way workers are managed. While positive action is most often seen as applying in recruitment, promotion and training, it can also be helpful in addressing workers’ different needs when they are being managed.
- Treat disabled people better than non-disabled people.
Age is different from other protected characteristics. If an employer can show that it is objectively justified, they can make a decision based on someone’s age, even if this would otherwise be direct discrimination.
However, it is very unusual to be able to objectively justify direct age discrimination of this kind. An employer must be careful not to use stereotypes about a person’s age to make a judgement about their fitness or ability to do a job.
An employer disciplines older workers more harshly than younger workers because they expect higher standards of behaviour from older people. This is almost certainly not objectively justifiable and therefore is direct age discrimination against the older worker.
Different treatment is allowed if it is absolutely necessary to do what health and safety laws say, if these laws are designed to protect women who are pregnant or who have recently given birth or to guard against risks specific to women.
A night-shift worker who is pregnant is certified by her GP as unable to work nights. Her employer must not dismiss her (this would be direct discrimination because of pregnancy). Instead they need to manage her by either finding her daytime work or, if they cannot do this, putting her on leave with full pay.
The general principle that women should, so far as is possible, not be disadvantaged by their pregnancy or maternity continues to apply.
It is not sex discrimination against a man to make special provision for a woman in connection with her pregnancy or maternity.
‘Positive action’ means the steps that an employer can take to address the different needs or past track record of disadvantage or low participation of people who share a particular protected characteristic.
Although most often thought of in the context of recruitment, promotion or training, positive action is available to employers in all employment situations, including how people are managed.
A large employer pays for specific counselling services for gay and lesbian members of staff who are found to experience greater incidents of homophobic bullying or harassment in the workplace. This is an example of positive action to meet a different need.
Positive action is not the same as ‘positive discrimination’ or ‘affirmative action’ which equality law does not allow.
Does an employer have to take positive action?
Taking positive action is voluntary. An employer does not have to take positive action. However:
- Meeting the different needs of the workforce can help make staff more productive.
- If the employer is a public authority, positive action will help them meet the public sector equality duty.
When can an employer use positive action?
Equality law says that an employer has to go through a number of tests to show that positive action is needed.
The tests say that the steps an employer is allowed to take as part of positive action must:
- be related to the level of disadvantage that exists
- not be simply for the purposes of favouring one group of people over another where there is no different need or disadvantage or under-representation in the workforce.
An employer must not have a blanket policy or practice of automatically treating people who share a protected characteristic more favourably than those who do not have it in the way that they manage them. They must look at whether it is needed for a particular group in a particular situation.
The sort of positive action steps an employer can take when managing people
The sort of steps an employer could consider include:
- Specific facilities or services for people with a particular protected characteristic.
Offering additional support from a mentor to a transsexual person who is undergoing gender reassignment.
- Providing childcare facilities or vouchers.
- If the organisation is large enough, setting up networks for staff who share a particular protected characteristic.
An employer will need to consider if such measures are needed and are proportionate. They should regularly review what they are doing to make sure positive action is still appropriate.
Treating disabled workers better than non-disabled workers
Separately from positive action, equality law allows an employer to treat a disabled worker better – or more favourably – than a non-disabled worker. This can be done even if the disabled worker is not at a specific disadvantage becuase of their disability in the particular situation. The reason the law was designed this way is to recognise that in general disabled people face a lot of barriers to participating in work and other activities.
Last Updated: 21 Jan 2015