When an Employer May Make a Decision Based on a Protected Characteristic

According to the law, discrimination is when someone is treated unfairly because of sex, race, age, disability or any other ‘protected characteristic’.

Protected characteristics are covered by the Equality Act 2010.

In some cases it might be legal for an employer to make a decision that’s based on a protected characteristic, if at least one of these points apply:

  • A decision they take helps a disadvantaged or under-represented group (known as ‘positive action’)
  • They have a good business reason to discriminate (known as ‘objective justification’)
  • The protected characteristic is essential for the job (known as an ‘occupational requirement’)
  • They’re asking if they need to make their workplace more accessible (known as ‘reasonable adjustments’) – however they must remember not to ask about disability except in limited circumstances
  • They want to find out about the diversity of their workforce to help make it as inclusive as possible – but they should still follow specific rules, including making sure the information is provided voluntarily and anonymously

Next steps

It’s a good idea to get legal advice before making a decision based on a protected characteristic.

Part of
Last Updated
21 June 2022
First Published
01 April 2022
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Please note that the information contained in this Handbook is provided for guidance purposes only. Every reasonable effort is made to make the information accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by Self Directed Support Scotland or any other contributing party.

The information does not, and is not intended to, amount to legal advice. You are strongly advised to obtain specific, personal and professional advice from a lawyer about employment law matters, or an accountant/ tax specialist about taxation matters, and from HMRC and your insurers. You should not rely solely on the information in this Handbook. Support organisations listed in this Handbook can help you find appropriate sources of advice.