Chapter 5: CD 8 Flashcards
CD 8 You must NOT DISCRIMINATE unlawfully against any person
Duty not to Discriminate
You must not discriminate unlawfully against, victimise or harass any other person on the grounds of:
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(i) Race,
(ii) Colour,
(iii) Ethnic or national origin,
(iv) Nationality,
(v) Citizenship,
(vi) Sex,
(vii) Gender reassignment,
(viii) Sexual orientation,
(ix) Marital or civil partnership status,
(x) Disability,
(xi) Age,
(xii) Religion or belief,
(xiii) Pregnancy or maternity.
(b) The grounds set out above are known as “protected characteristics”
(c) The BSB Handbook Equality Rules provides definitions of some of the key concepts involved in the discrimination rules and explains when and where they apply to barristers’ practices. It also sets out those
parts of the Equality Act 2010 which relate specifically to the Bar.
(d) N.B. for the purposes of the Assessment you do NOT need to know the specific provisions or section numbers of the Act itself.
Application of the Duty
(a) The requirement not to discriminate applies to ALL BARRISTERS in ALL ASPECTS OF HIS OR HER PROFESSIONAL LIFE. The requirement applies to a barrister’s relationship with “any other person” in the course of his or her professional dealings.
Application of the Duty
The requirements may be interpreted as covering the following relationships:
(i) Clerks and other chambers’ staff;
(ii) Clients;
(iii) Instructing solicitors and their staff;
(iv) Court staff;
(v) Judges;
(vi) Other barristers;
(vii) Pupils.
Application of the Duty
Discrimination is prohibited in two main areas:
(i) EMPLOYMENT;
(ii) SERVICE DELIVERY; (but age and marriage/civil partnership characteristics are excluded under this head).
Application of the Duty
Barristers and their clerks are specifically covered by the legislation in the following areas:
(i) The arrangements for RECRUITING tenants and pupils;
(ii) The TERMS on which tenancy or pupillage is OFFERED;
(iii) The TERMS on which pupils or tenants are RETAINED;
(iv) The way in which pupils or tenants are afforded ACCESS TO OPPORTUNITIES for training or gaining experience or for receiving any other benefit, facility or service;
(v) The TERMINATION of tenancy or pupillage;
(vi) The HARASSMENT of pupils or tenants;
(vii) The VICTIMISATION of pupils or tenants;
(viii) ANY DISCRIMINATION against barristers including victimisation or harassment.
Key Types of Discrimination
The main categories of unlawful discrimination are:
(i) DIRECT DISCRIMINATION:
(ii) INDIRECT DISCRIMINATION
(i) DIRECT DISCRIMINATION:
(1) Occurs when a person treats another LESS FAVOURABLY than they would treat others because of a PROTECTED CHARACTERISTIC;
(2) Direct discrimination can NEVER be justified (with some very limited exceptions which are not relevant here);
(3) Discrimination can be based on a FALSE PERCEPTION. Thus, if a person discriminates against another because he mistakenly believes that person is gay, it remains discrimination even though the belief is incorrect.
(ii) INDIRECT DISCRIMINATION
(1) Occurs where an apparently NEUTRAL PROVISION, criterion or practice has or would have a DISADVANTAGEOUS IMPACT upon a particular group compared with others.
(2) Indirect discrimination CAN be justified if it is a PROPORTIONATE MEANS OF ACHIEVING A LEGITIMATE AIM.
REASONABLE ADJUSTMENTS
Where a provision, criterion, physical feature or practice puts a DISABLED person at a substantial disadvantage in comparison with non-disabled people, then there is a duty to take REASONABLE STEPS to avoid the disadvantage.
HARASSMENT:
(i) Is any form of unwanted conduct related to a PROTECTED CHARACTERISTIC which has the effect or purpose of VIOLATING A PERSON’S DIGNITY, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
(ii) A single incident may constitute harassment if sufficiently serious.
(iii) The motive or intention of the perpetrator may be (but is not necessarily) relevant.
(iv) Harassment can constitute a criminal offence.
VICTIMISATION
(i) A person victimises another person if s/he subjects that person to a DETRIMENT because s/he believes that person has done or is about to do a PROTECTED ACT, such as:
(1) Giving evidence in proceedings relating to discrimination;
(2) Bringing proceedings relating to discrimination;
(3) Making an allegation of discrimination.
4 Other Important Concepts
(a) Other relevant concepts for the purposes of the Equality Handbook are:
(i) POSITIVE ACTION
(1) This allows a person to take any step to encourage or enable a group with a shared protected characteristic to overcome or minimise any disadvantage or under-representation or particular need.
(ii) DISCRIMINATION BY PEOPLE WITH THE SAME PROTECTED CHARACTERISTIC
(1) Individuals with the same protected characteristic can discriminate unlawfully against each other. Thus, a woman can discriminate against another woman, and one Hindu barrister can discriminate against another Hindu barrister.
(2) NB: Unlawful discrimination must be based on a protected characteristic. It is currently lawful for a member of a political party to discriminate against members of other parties, or for a City supporter to discriminate against a United supporter, for example.
(iii) UNINTENTIONAL DISCRIMINATION
(1) A lack of intention to discriminate is NOT a defence to any allegation or claim of discrimination (including harassment or victimisation).
5 Discrimination in respect of Service Provision
(a) In relation to service provision it is unlawful to discriminate against someone by:
(i) Refusing or deliberately omitting to provide them with the service;
(ii) Refusing or deliberately omitting to provide them with services of the same or similar quality or standard; or
(iii) Refusing or deliberately omitting to provide them with services on the same terms as would otherwise be provided.
