Specific defences and exceptions in prohibited conduct claims
Specific defences and exceptions in prohibited conduct claims

The following Employment guidance note provides comprehensive and up to date legal information covering:

  • Specific defences and exceptions in prohibited conduct claims
  • Which protected characteristics apply
  • Illegal contracts
  • Actions required by enactments, governing instruments and other rules
  • Worker benefits also provided to the public
  • National security
  • State immunity and diplomatic immunity
  • Positive discrimination
  • Terms of the contract (1) covered by the equality of terms provisions or (2) relating to pay
  • Occupational requirements
  • more

Which protected characteristics apply

Except where stated, defences and exceptions outlined below apply in relation to all protected characteristics.

This Practice Note also covers certain exceptions that are restricted to one or two specific types of discrimination: where this is the case, that restriction is made clear.

References to 'prohibited conduct claims' in this Practice Note refer to claims made in the employment tribunal relating to one or more protected characteristics which complain of any of the following forms of conduct prohibited under EqA 2010:

  1. direct discrimination

  2. Discrimination arising from disability

  3. gender reassignment discrimination: cases of absence from work

  4. pregnancy and maternity discrimination

  5. indirect discrimination

  6. failure to make reasonable adjustments

  7. harassment

  8. victimisation

Illegal contracts

Employment tribunals still have jurisdiction to hear a prohibited conduct claim even though the claimant's employment contract is tainted by illegality unless the very nature of the claim arises out of or is so clearly connected or inextricably bound up or linked with the claimant's illegal conduct that the tribunal would appear to condone that conduct by awarding him compensation. Various factors need to be considered, such as:

  1. the circumstances surrounding the claim and the illegal conduct

  2. the nature and seriousness of the illegal conduct

  3. the extent of the claimant's involvement in the illegal conduct

  4. the character of the claimant's claim

Employees are usually allowed to proceed