ch 3 legal services - equality act Flashcards
race protected characterisation
colour, nationality, ethnic or national origin
religion - belief requirements?
belief genuinely held not a view point, relating to a substaintial part of human life/ be worthy of respect/ certain level of cogency 9clear, logical and convincing)
sex - protected characteristic.
sexual orientation (orientation covers attraction)
Age
men and women
disability - threshold/ requirements?
physcial/ mental impairment. Substantial and long term adverse effect on ability carry out normal day to day
Gender reassignment and marriage/ CP protected characteristic
and pregnanacy and maternity protected
covers cohabitants, single people and divorcees
Direct discrimination?
A discriminates against B because of a protceted characterisatic, treating B less favourably than A would treat others.
Treatment experienced is different to real or hypothetical person (circumstances same or not materially different).
Less favourably treated and protected characteristic.
OVERT AND OBVIOUS.
Is there a requirement to show intention to treat less favourably or to have suffered a material/ tangible loss with direct discriminates?
No
Is there a general defence direct discrimination?
No except age (if prop way of achieving a legitimate aim).
Indirect discrimination
policy put in place of universal application but has an adverse impact on those who share a protected characteristic.
Justify indirect discrimination?
Yes - proportionate means of achieving a legitimate aim. Does not apply to pregnancy and maternity.
Discrim pregnancy and maternity - direct discrimination.
Justify disability discrimination?
Proportionate means of achieving legitimate aim - perpetrator must have known or reasonably be expected to know disabled person had a disability.
Victimisation
A subjects B to a detriment because B does a protected act or A believes B has done a protected act.
What is a protected act
essentially reporting discrimination or doing anything related.
Victim does not need to have a protected characteristic.
what is harassment?
Inddividual subjected to a form of unwanted conduct.
Unwanted conduct must related to a protected characteristic (except pregnancy or marriage).
AND be of a sexual nature or be of a sexual nature or related to gender reassignment and less favourable treatment because of individuals rejection or submission to the conduct.
Equality Act onnly makes discrimination unlawful in the cotexts of
Provision of legal services and employer
Solicitor discriminatory in private life
SRA Breach
Disabled people there is a duty to
make adjustments - auxiliary aid, reasonable steps to avoid a disadvantage, physcial features
Equality Act - does it include all legal service providers even if unregulated?
yes
no requirement that provider recieves payment for services - applies to those who provide legal advice fir free.
Can a firm be held vicariously liable for behaviour of an employee?
yes.
Could use defence that firm took steps reasonable to prevent act of discrimination.
Is there a duty on solicitors to make adjustments?
yes. No requirement to make fundamnetal changes, costs of making adjustments can not be passed on.
duty to disable people generally.
PROVIDER MUST ANTICIPATE rather than wait for possibility to arise.
does the service provider have to anticipate disabled person?
yes
only person who suffered can bring a claim.
Burden of proof when making a claim.
Intially on claimant. Burden shifts to D
What remedies are available
Any remedy which a High Court could make in tort or judicial review - no limit on damages.
if firm and eployee both liable - they are jointly liable for damages awarded.
Injunctions and declarations could be granted.
Solicitors as employers - applies to prospective, current and former employees.
Does an employee have to suffer physcial consequence or financial loss to show detriment?
No
Does vicarious liability apply for acts if employees in context of employment?
Yes.
In the case of employment is there an exception for discrimination where it is not unlawful?
YES!
Employer can demo that due to job nature only people with a protected characteristic can do it.
Show prop means legitimate aim.
In the case of employment making adjustments do they have to anticipate?
No - just have to know or reasonably ought to know for disabled employee or prospective employee.
Then make reaosnable adjustments.
Making a claim employment context who do you claim to?
Employment Tribunal
1st - submit qs to eomployer.
2nd - try to settle
3rd Employment tribunal can award unlimited compensation. Put employee in position they would have been in had the wrong not occured. Declare rights or make recommendations.
Are barristers protected/ special provisions?
Protected fro solicitors instructing them. And protected from members of chambers/ clerks and those who have applied for tenancy or pupillages.
Is positive action a requirement?
No, not unlawful if don’t take it.
2 requirements met for positive action to be lawful?
1st requirement - firm must reaonsably think people with protected characteristic suffer a disadvantage due to it or have diff needs or participation prop law.
show basis for belief eg survey or report.
2nd requirement - prop means of achieving - trying to overcome disadvantage or encourage participation.
recruitment process - treat person with protected characteristic more favourably?
yes - 2 people equal tie breaker situation,
CAn’t shortlist applicants from ethnic group irrespective of suitability.
Not intention of allowing positive discrimination.
Is there an SRA conduct requirement for firms to provide appropriate training on Act?
yes
does failure to comply with the Act also raise conduct issues?
yes
is discrimination also dealt with by SRA Code of conduct?
yes. discriminatory behaviour goes beyond definition of Act
discrimination in personal capacity covered by SRA code of conduct?
yes
SRA expectation of firms
treat people fairly and with dignity - employees and clients. SRA expects firms to look after staff welbeing and protect them from harassment, bullying and victimisation
Expect firms to put policies in place to further equality, d and i. Failure to have such policies in place could breach SRA conduct.
Also SRAcode expects firms to publish E,D and I reports and put measures in place to improve
