Creating a fairer Britain
Sometimes there are situations where equality law applies differently. This guide refers to these as exceptions.
There are two exceptions which are relevant to decisions about working hours, flexible work and time off. These apply to all employers:
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 recruiting someone to do a job. These are explained in the relevant guide in the series.
In addition to these exceptions, equality law allows you to:
Age is treated differently from other protected characteristics. If you can show that it is objectively justified, you can make a decision based on someone’s age, even if this would otherwise be direct discrimination.
An employer decides to allow workers over the age of 55 to ask to work flexibly, regardless of whether they qualify for the right to request flexible working. This is so that they can retain the skills of their older workers in the organisation by fitting in with the older workers’ desire to work fewer hours. A younger worker says that they should also be able to work flexibly even if they do not qualify for the right to request. Provided the employer can objectively justify their decision, equality law would allow this difference of treatment based on age.
There is a specific age exception allowing different levels of benefits eg annual leave, based on length of service of up to five years. Read more about age.
It is not sex discrimination against a man to provide special treatment for a woman in connection with pregnancy or childbirth.
An employer allows a pregnant worker to have time off not just for ante-natal appointments (which is a legal requirement) but also to attend fitness classes for pregnant women at a nearby gym. The worker makes up the lost hours at another time, which she would not have to do for an ante-natal appointment. It would not be sex discrimination to refuse a man’s request to go to a fitness class during working hours.
‘Positive action’ means the steps that you can take as an employer 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 you in all employment situations, although you have to go through a number of tests to show that positive action is needed.
Taking positive action is voluntary. You do not have to take positive action. However:
If you want to know more about taking voluntary positive action in relation to how you manage your workers, read the Equality and Human Rights Commission’s guide: What equality law means for you as an employer: Managing workers.
As well as these exceptions, equality law allows you 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 because 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.