The Equality Act 2010

The following are protected characteristics under the Equality Act 2010 (‘the 2010 Act’) –

• age;

• disability;

• gender reassignment;

• marriage and civil partnership;

• pregnancy and maternity;

• race;

• religion or belief;

• sex; and

• sexual orientation. [1]

The 2010 Act prohibits –

• direct discrimination; [2]

• indirect discrimination; [3]

• harassment; and [4]

• victimisation. [5]

Direct discrimination occurs when someone treats another less favourably because they possess a protected characteristic. For example a landlord may decide not to offer tenancies to people from a particular ethnic group. There are some limited exceptions to this, for example where the protected characteristic is disability and the person being treated less favourably is not disabled, then this is not discrimination, i.e. it is not discrimination to treat a disabled person more favourably than a non-disabled person. [6]  

Direct discrimination also covers the situation where someone is discriminated against because of their association with someone with a protected characteristic (for example someone caring for a disabled person and treats them less favourably because of this) and where someone is discriminated against because it is thought that they possess a protected characteristic (for example someone believes that someone is gay and treats them less favourably because of this).

Indirect discrimination occurs when someone applies a ‘provision, criterion or practice’ that discriminates against a particular group in relation to one of the protected characteristics. [7] For example a local authority puts in place a particular rule that puts disabled people at a particular disadvantage when compared with people without a disability.

In some circumstances indirect discrimination can be justified if it is deemed to be a proportionate means of achieving a legitimate aim, see the section on the ‘proportionality defence’ below.

Harassment occurs when someone ‘engages in unwanted conduct related to a relevant protected characteristic’ and this conduct violates the recipient’s dignity or creates an ‘intimidating, hostile, degrading, humiliating or offensive environment’ for the victim. [8] The protection from harassment applies to all of the protected characteristics apart from marriage and civil partnership, and pregnancy and maternity.

Victimisation occurs when someone subjects a person to a detriment because that person –

• carries out a protected act; or

• it is believed they have carried out, or will carry out, a protected act. [9]

The following are ‘protected acts’ under the 2010 Act –

• bringing proceedings under the 2010 Act;

• giving evidence in proceedings brought under the 2010 Act;

• doing anything else that is connected with the 2010 Act; and

• making an allegation that someone has breached the 2010 Act. [10]

It is not just people who possess protected characteristics who are protected from victimisation – people offering support to people with bringing a case under the 2010 Act are also protected.

Where someone has been accused of discriminating against someone indirectly they will be able to defend their actions if they can prove that their conduct was a proportionate means of achieving a legitimate aim. [11] For example, a landlord may decide to take a particular course of action to protect the health and safety of other tenants living in a block of flats.

The duty to make reasonable adjustments which was contained in the Disability Discrimination Act 1995 is incorporated into the 2010 Act.

This duty is placed upon the providers of goods and services and employers. Where requested, service providers must make reasonable adjustments to allow disabled people to use their services. This could include making an office which is open to the public wheelchair accessible or making sure that information is available in different formats, for example information on tenancy rights may need to be made available in Braille or audio. [12]

Please see the page on disability discrimination for more information.

The 2010 Act prohibits discrimination and victimisation when disposing of a property, i.e. renting out or selling accommodation. [13] This applies to the terms on which someone is offered a property, a decision not to dispose of a property to a particular person and in relation to the general treatment someone receives when looking for a place to live.

The protected characteristics for the purposes of the disposal of property are:

• disability

• gender reassignment

• pregnancy or maternity

• race

• sex

• sexual orientation

• religion or belief.

Age and marriage or civil partnership are not protected characteristics in this context. [14]

Harassment is also prohibited in relation to a person’s occupation of a particular property and to the process of a person applying for a place to live. The protection from harassment does not apply to the protected characteristics of religion, belief or sexual orientation. [15]

This protection applies where someone's permission is required for the disposal of a property, for example a tenant wishes to assign their lease to someone or sub-let their property and they require permission from their landlord to do so. [16] Harassment and victimisation are also prohibited in these circumstances. However, as a above, the protection from harassment does not apply to the protected characteristics of religion, belief or sexual orientation. [17]

Additionally, anyone who manages a property or properties must not discriminate against, victimise or harass anyone living in any of the properties for which they have responsibility. [18] This applies to –

• the way in which any benefit or facility is available, or not available, to occupants;

• eviction of an occupant; and

• any other detriment suffered by an occupant.

Again, the protection from harassment does not apply to the protected characteristics of religion or belief or sexual orientation. [19]

Where an owner-occupier disposes of a property privately then protection from discrimination only applies to race. Additionally, when permission is required to dispose of premises protection from discrimination under s.34(1) of the 2010 Act does not apply to religion, belief or sexual orientation. [20] In this situation an owner-occupier is within their rights to decide not to offer a tenancy to someone based upon the fact that they possess one of the protected characteristics, bar race. This is quite common – for example a female owner-occupier may wish to share her accommodation only with another female and she is justified to use this criterion when deciding who she lets the property out to.

Owner-occupiers are also excluded from the duty to make reasonable adjustments to their premises under s.36(1)(a)-(b) of the 2010 Act where the property is, or has been, the only or main home of the person letting them out, and the owner-occupier or anyone letting out the property manages the letting or selling of the property themselves, i.e. they have not used an estate agent or property manager. [21] 

When renting out, occupying or managing small premises sections 33(1), 34(1) and 35(1) of the 2010 Act only apply in relation to race. [22] In addition, the requirement to make reasonable adjustments under s.36(1) of the 2010 also excluded from covering small premises. [23]

This section applies to premises where –

• the person letting out the property also occupies it, or has occupied it, as their main or principal home and the only other people living in the property are members of their own household;

• the property also provides accommodation for at least one other household, the accommodation is provided to each household under separate tenancy agreements and the accommodation is not normally big enough to house more than two different households. [24]

• the property isn’t normally expected to house more than six people in addition to the person using the property as their main or principal home and their household. [25]

Consequently someone letting out, occupying or managing small premises may legally discriminate against an individual, for example, by deciding not to offer a tenancy to that person or evicting that person. This allows people who are considering sharing their family home with a tenant to make more choices as to who they wish to share their property with. For example, someone may not wish to share their family home with someone of a particular religious belief due to personal reasons or share their home with someone of a particular sex due to personal reasons.

Where an individual has suffered discrimination as described by the 2010 Act they have the right to apply to the sheriff court for damages, including compensation for injured feelings. The sheriff court has the power to grant any order that the Court of Session would grant in a claim for judicial review. [26]