Are Employees With Protected Characteristics Harder to Dismiss?

Managers can become nervous about taking formal action when an employee has a protected characteristic.

Perhaps an employee is disabled and their performance is poor. Someone who is pregnant has committed misconduct. An employee has raised concerns about discrimination and their manager is now worried that any further action will look retaliatory.

This can sometimes lead to the belief that certain employees are simply “harder to dismiss” or cannot be dismissed at all. Managers may be particularly unsure whether they can dismiss an employee with a protected characteristic without putting the business at risk.

That isn't really the right way to look at it. Having a protected characteristic does not give an employee general protection from performance management, disciplinary action, redundancy or dismissal. What matters is why action is being taken, whether the protected characteristic is relevant to the situation and whether the employer has followed a fair and appropriate process.

What Are Protected Characteristics?

The Equality Act 2010 protects people from discrimination because of nine protected characteristics:

• Age

• Disability

• Gender reassignment

• Marriage and civil partnership

• Pregnancy and maternity

• Race

• Religion or belief

• Sex

• Sexual orientation

These protections apply to many aspects of employment, including dismissal, redundancy and disciplinary action. This does not mean an employee with a protected characteristic cannot be dismissed. It means an employer must not dismiss someone because of a protected characteristic or discriminate against them when making decisions about their employment.

Can You Dismiss an Employee Who Has a Protected Characteristic?

Yes. An employee who has a protected characteristic can still be dismissed for a fair and genuine reason. Poor performance does not automatically become acceptable because an employee has a protected characteristic, and neither does misconduct.

The same applies to redundancy. An employee can potentially be selected for redundancy where there is a genuine redundancy situation and a fair selection process. What an employer cannot do is select someone because of their protected characteristic.

The important question is therefore not simply “Does this employee have a protected characteristic?” It is whether that characteristic has any relevance to the issue you are dealing with and whether it affects how the process should be handled.

Can You Performance Manage Someone With a Protected Characteristic?

Yes. Employees with protected characteristics are still expected to perform their roles to the required standard. If an employee is consistently missing deadlines, producing work below the expected standard or struggling to carry out an important part of their role, a manager does not have to ignore the problem because the employee happens to have a protected characteristic.

Managers should be able to explain clearly what the performance problem is and apply standards consistently. If one employee is formally managed for performance that would routinely be overlooked in other employees, and the difference in treatment is connected to a protected characteristic, that could create a discrimination issue.

There may also be circumstances where the protected characteristic is directly relevant to the performance problem. Disability is an obvious example.

What If Poor Performance Is Connected to a Disability?

This is where employers need to look more carefully at what is happening before moving through a standard performance process.

If an employee is disabled and their performance difficulties may be connected to their disability, the employer should consider what support or reasonable adjustments may be needed. This could involve changes to equipment, working arrangements, duties or the way the performance process itself is carried out.

Before progressing capability or performance action where somebody cannot do their job because of a disability, employers should make sure they have done all they reasonably can to support them. That does not mean performance concerns disappear.

There may ultimately be situations where, despite appropriate support and reasonable adjustments, the employee remains unable to perform their role to the required standard. Dismissal can still potentially be considered, but the employer needs to be able to show that it properly considered the disability, reasonable adjustments and other realistic options first.

So a disabled employee is not automatically protected from dismissal. There are simply additional considerations that an employer may need to work through before reaching that point.

Can You Discipline Someone With a Protected Characteristic?

Yes. Having a protected characteristic does not prevent an employer from addressing misconduct. If an employee breaches a reasonable workplace rule, behaves inappropriately or commits serious misconduct, the employer can investigate and take disciplinary action where appropriate. Again, the reason for the action matters.

If two employees commit comparable misconduct but only one is disciplined, an employer may need to explain why they were treated differently. Decisions should be based on the circumstances of the case rather than assumptions about the employee or their protected characteristic.

Employers should also consider whether there is anything connected to a disability or another relevant factor that needs to be understood as part of the investigation. That may affect the circumstances or the appropriate outcome, but it does not mean misconduct can never be addressed.

Does a Disability Mean You Can't Dismiss an Employee?

No, although disability does bring some additional legal considerations that managers need to understand. Employers have a duty to make reasonable adjustments for disabled employees where the legal duty applies. Failing to make reasonable adjustments can itself amount to disability discrimination.

This is why jumping straight from “this employee is struggling” to dismissal can be risky where disability may be involved. You may need to understand the effect of the disability, consider medical or occupational health information where appropriate, discuss support with the employee and consider reasonable adjustments.

There can still come a point where employment cannot reasonably continue. Dismissal may be possible where an employee remains unable to do their job after appropriate support and reasonable adjustments have been considered, there are no suitable alternative roles and the decision to dismiss is reasonable in the circumstances. Disability therefore does not mean an employer can never reach dismissal. It means the route to that decision may require additional steps.

Can You Dismiss an Employee Who Is Pregnant or on Maternity Leave?

Pregnancy and maternity are protected under discrimination law, but an employee who is pregnant or on maternity leave is not completely exempt from normal workplace processes. For example, if an employee commits misconduct, the employer can still investigate and deal with it appropriately. What it must not do is take action because the employee is pregnant or because of a reason connected to pregnancy or maternity.

Pregnancy and family-related rights also have specific protections that can make dismissal automatically unfair in certain circumstances. This is an area where employers should be particularly careful to establish the genuine reason for any action and make sure pregnancy or maternity has not influenced the decision.

What If the Employee Has Complained About Discrimination?

This is another situation that can make managers nervous. An employee raises a discrimination complaint and then, perhaps a few weeks later, there is a genuine performance or conduct issue. The manager may worry that they can no longer address it.

Raising a discrimination complaint does not give somebody immunity from normal management. However, the Equality Act also protects people from victimisation where they have done certain protected acts, which can include making an allegation of discrimination. You therefore need to be able to separate the two issues.

If the performance problem existed before the complaint, make sure the evidence supports that. If a new conduct issue arises afterwards, deal with the actual conduct rather than allowing frustration about the employee's complaint to influence the response. Managers should not think, “We can't touch them now they've complained.” Equally, they should not suddenly start scrutinising everything the employee does because they are unhappy that a complaint was made.

Does Having a Protected Characteristic Mean Someone Has More Employment Rights?

It gives employees important protections against discrimination, but it does not create a general right to be treated more favourably in every workplace decision.

In fact, most workforces will contain many people with protected characteristics. Sex, age, race, religion or belief, sexual orientation and the other protected characteristics are not unusual exceptions to normal employment. The mistake is thinking of employees as falling into two groups: people who are straightforward to manage and people who are “protected”.

The better approach is to manage employees fairly and consistently while recognising where individual circumstances require something different. Sometimes treating somebody fairly does require adjustments or a different approach. That is particularly important with disability. But making an adjustment to a process is very different from saying the underlying performance, conduct or attendance issue can never be addressed.

Are Employees With Protected Characteristics Really Harder to Dismiss?

Not simply because they have a protected characteristic. What can make a dismissal more complicated is when the reason for the proposed action overlaps with something protected by discrimination law.

A straightforward misconduct case involving an employee who happens to have a protected characteristic may require no fundamentally different approach. A capability case where the employee's difficulties are directly connected to a disability is likely to require more consideration.

Employers can get into difficulty at either extreme. Some ignore the protected characteristic completely when it is clearly relevant. Others become so worried about discrimination that they stop managing the employee altogether. Neither is good HR practice.

Understand the reason for the problem, consider whether a protected characteristic is relevant, make any adjustments or additional enquiries that are needed and follow a fair process. If there is still a genuine reason for formal action or dismissal at the end of that process, having a protected characteristic does not automatically prevent the employer from taking it.

Need HR Support?

If you're dealing with performance, conduct, absence or another employee issue and you're worried about how a protected characteristic affects what you can do, BloomHR can help.

We provide practical HR advice to help small businesses manage employee issues fairly and confidently, without avoiding difficult decisions simply because discrimination law may be relevant. Contact us for more information.