Our HR and Employment Law helpline is here to help employers with the everyday ins and out of employing people. The types of calls and the queries we receive vary quite considerably. From a fairly innocuous question requiring clarification on calculating holiday pay, to the much more serious relating to behaviour or an incident that has potential to lead to a disciplinary outcome.

Where the latter is concerned, and particularly where the outcome may ultimately lead to a dismissal, we generally have two questions that we ask our clients before we furnish them with any advice. The answers will determine the extent to which the individual in question is protected by employment law, and also the approach we should take to ensure the client isn’t exposed to any unnecessary risk.

Those two questions are:

• What is the employee’s length of service?
• Does the employee have any protected characteristics?

An answer of ‘less than two years’ to the first question means the employee should be potentially much easier to dismiss, if the situation is serious enough to warrant this. Employee rights kick-in at the two-year point and so prior to this, employees have not accrued any rights. Although an employee can not bring a claim for unfair dismissal until they have achieved 2 years’ service, they may bring other claims and there seems to be an increasing tendency to do so. To mitigate this risk, following a disciplinary process is often advisable.

So, consistently poor performance, absence, bad behaviour, conduct or attitude can mean a quick exit for some members of staff; although if an employee has successfully completed their probation, they should be afforded a full and proper process.

Also, if an employee’s contractual notice period takes them over two years of service, then they should be treated as having reached the two years’ service threshold.
If the answer to the second question is yes, then we must proceed with caution. It’s a sad fact that we must go above and beyond to prove that any protected characteristic an employee might have is not the root cause for the disciplinary action or dismissal.

Decisions made against an employee’s best interests, because they have one or more protected characteristics, are automatically discrimination, awards against claims for which are unlimited. The record for highest UK award stands at a staggering £4.5 million, so it’s actually a good idea to ensure that discrimination is eliminated from your organisation.

The grounds for discrimination were originally set out in the Equalities Act 2010. Since the implementation of the act, there have been a few updates, changes and additions to the definitions. Employers should be aware of what the protected characteristics are as they will always be considered by a Tribunal in cases of dismissal.

Here’s a list of the protected characteristics as defined by the Equalities Act with a brief overview of each.

• Age – You can’t make a decision about an employee or potential employee that is influenced by their age. This goes for young as well as old. Using words such as “energetic” or “experienced” in a job advertisement for example, would cross the line at both ends of the age spectrum. Asking someone to retire is a slam-dunk discrimination case.
• Disability – Employers must make reasonable adjustments to the workplace or work conditions in order to accommodate employees with disabilities. There may be limits to what you can do of course but you must be able to prove that you have gone to “reasonable” lengths. This might extend to altering an individual’s working hours as much as the physical environment. Remember that disability covers mental health too.
• Gender reassignment – Staff who propose to, have started or have completed a process to change their gender must have equal treatment and facilities. This may for example, include installing a female toilet in a previously all-male environment, although changing toilets to universal use seems to be the option favoured by most organisations.
• Marital Status – Whether a person is married, single or divorced should not influence any decisions made about their employment status or terms. Civil Partnerships are covered by the same rules.
• Race – This includes race defined by colour, nationality or ethnicity.
• Religion or belief – Similar to race; a person’s religion or belief should have no bearing on how they are treated or decisions made about them. Having no religion, ie Atheism, counts too, and this also extends to “ethical veganism”, whereby how an individual lives their life is strictly influenced by that belief.
• Pregnancy & Maternity – Treating someone differently because they are pregnant or on maternity leave is another big no.
• Sex – Whether an employee is male or female should make no difference to any employment decision. Sex discrimination is often cited in equal pay cases
• Sexual orientation – Relates to whether a person’s sexual attraction is to the same sex, the opposite sex or both sexes.

The Equalities Act also covers discrimination by association, so it would be unlawful to treat someone differently because they cared for a child with a disability or because their partner held a particular religious belief.

There is no hierarchy of protected characteristics, and no one characteristic trumps another. The whole purpose of the Equalities Act is to ensure that everyone is treated equally and fairly and to make employment in the UK a level playing field. Clear and consistent processes that are applied equally across the entire workforce, particularly where dismissal is concerned, is paramount.

So, if you ever have need to pick up the phone to us in relation to an employee, please consider that you’ll probably be asked these two key questions so you might want to have the answers prepared. The number to call us on is 01452 331331 or you can e-mail This email address is being protected from spambots. You need JavaScript enabled to view it.