Protected characteristics: an overview

Introduction

All nurses have a responsibility to proactively create a culture of inclusivity and speak out on behalf of those who are being marginalised. The Nursing and Midwifery Council Code (2018) states that nurses must create an environment where people are treated as individuals with dignity and respect, their rights must be upheld and any discriminatory attitudes and behaviours towards those receiving care must be challenged. Unfortunately, discriminatory behaviour continues to be present in healthcare settings.

The Equality Act 2010 offers legal protection from discrimination in the workplace and in wider society. Discrimination is defined as being treated less favourably than someone else (Advisory, Conciliation and Arbitration Service, 2023).

Discrimination in nursing, as in any profession, is unacceptable and goes against the principles of fairness, equality and ethical conduct (Nursing and Midwifery Council, 2018). Acts of discrimination can be subtle or overt and they can occur in various forms. The Equality Act 2010 offers protection to people from discrimination on the basis of protected characteristics, which are:

1. age
2. disability
3. gender reassignment
4. marriage and civil partnership
5. pregnancy and maternity
6. race
7. religion or belief
8. sex
9. sexual orientation

Click on the above links to find more in-depth articles covering each of the protected characteristics.

It is unlawful under this Act to discriminate against a person because of a protected characteristic. People are protected from discrimination in a number of contexts, including employment, access to goods and services, education and housing. The principles underpinning the Act apply to ‘workers’ in general (as opposed to simply ‘employees’), and agency workers are also protected from discrimination (Royal College of Nursing, 2023). There is a duty imposed on public sector bodies to consider how they can contribute to reducing socioeconomic inequalities.

Types of discrimination

There are various types of discrimination; some common examples are listed below.

Direct discrimination

Treating someone with a protected characteristic less favourably than others (RCN, 2023). Less favourable treatment is anything that puts someone with a protected characteristic at a disadvantage when compared to someone who does not have that characteristic. There is no legal definition of ‘disadvantage’ in this context, but this might involve excluding a person from opportunities, causing them distress or making it harder for them to do their job.

Indirect discrimination

Putting rules or arrangements (working practices or policies) in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage (RCN, 2023). For example, if a job advertisement states that the applicant must have a driving licence, but driving is not part of the role, this could be considered indirect discrimination.

Harassment

Unwanted behaviour linked to a protected characteristic that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for the person (RCN, 2023). More serious harassment can also be considered a hate crime.

Victimisation

Treating someone unfairly because they have complained about discrimination or harassment (RCN, 2023). The law states that victimisation means ‘suffering a detriment’, because the person has done or intends to do a ‘protected act’. A protected act means taking action related to discrimination law. This includes:

• making a complaint of discrimination or harassment
• supporting someone else’s complaint
• gathering information that might lead to a complaint
• acting as a witness in a complaint
• saying something or giving evidence that does not support someone else’s complaint

The law will also protect a person from victimisation when someone else thinks the person has done or intends to do any of the above actions. Detriment means experiencing being treated worse than before or having one’s situation made worse.

Intersectionality

Intersectionality refers to the interconnected nature of social categorisations, such as race, class, gender and other forms of identity. Intersectionality acknowledges that people’s identities and experiences are shaped by the intersection of a range of social categories. A person’s experience of discrimination, for example, is not solely based on one factor (such as gender or race), but can be influenced by multiple factors (United Nations Network on Racial Discrimination and Protection of Minorities, 2022).

Discrimination by perception and association

Discrimination by perception is when a person is treated unfairly because it is believed they have a certain protected characteristic under the Equality Act 2010, whether or not this is the case. This might occur if an employer, for example, believes that an employee is of a particular race or is gay, and treats them less favourably because if this.

Discrimination by association occurs when a person is treated less favourably because they are linked to or associated with a person with a protected characteristic. The associated person may be their child, spouse, relative, friend or peer. This type of discrimination is also addressed under the Equality Act 2010.

Conclusions

It is against the law to discriminate against anyone because of the protected characteristics. If a person is experiencing discrimination, they should refer to the employer’s equality and diversity policy and speak to their line manager about any concerns they may have.

Nurses are encouraged to recognise and challenge discrimination wherever they see it, and in doing so, deliver high-quality care to all patients. Nurses need to feel empowered to work together to identify and address discrimination. There is more that we must all do to ensure robust leadership and accountability that is underpinned by the right processes.