Equality Act Flashcards
what are the protected characteristics?
DRGRAMPS (9)
o Disability physical or mental impairment that has a substantial, long-term adverse effect on their ability to perform normal activities (i.e. HIV)
o Race
o Gender reassignment proposing to, in the process of, or have under gone treatment to reassign their sex
o Religion any (or absence of) religion or philosophical belief. The belief must be genuinely held and respect worthy.
o Age
o Marriage/CPs
o Pregnancy and maternity
o Sexual orientation includes attraction and behaviour
explain disability
physical or mental impairment that has a substantial, long-term adverse effect on their ability to perform normal activities (i.e. HIV)
explain gender reassignment
proposing to, in the process of, or have under gone treatment to reassign their sex
explain religion
any (or absence of) religion or philosophical belief. The belief must be genuinely held and respect worthy.
explain sexual orientation
includes attraction and behaviour
what are the types of prohibited conduct?
direct discrimination
disability discrimination
indirect discrimination
harassment
victimisation
in summary, what is direct discrimination?
A treats B less favourably than they would treat others because of B’s PC
what are the elements of direct discrimination?
there needs to be a comparator, less favourable treatment because of a protected characteristic
re: direct discrimination
explain the ‘comparator’
the treatment experienced must be different to that of a hypothetical (or real) person that doesn’t have the PC in the same or not materially different circumstances
re: direct discrimination
explain ‘less favourable treatment’
objective test. Any disadvantage will be sufficient and B need not show tangible loss. No need to show A intended to treat B less favourably.
re: direct discrimination
explain ‘protected characteristic’
the LFT must have happened because of a PC, it need not be the sole reason but the PC must have had an influence.
re: direct discrimination
is there a defence?
no defence unless it is age discrimination. This will be justified if it is a proportionate means of achieving a legitimate aim (PMALA)
what is indirect discrimination?
there is a provision, practice, criterion (PCP) in place that applies to everyone but it does/would disadvantage those who share a PC
is there a defence to indirect discrimination?
if the provision, practice or criterion is a PMALA
This does not apply to pregnancy/maternity discrimination
give an example of indirect discrimination
policy requiring staff to work full time could disadvantage women as a greater proportion of women deal with child care. This would be ID but permissible if the employer could show its PMALA
what is disability discrimination?
when a disabled person is treated unfairly because of something arising as a consequence of their disability
The perpetrator must have known or reasonable ought to have known that the disabled person had a disability
what is a defence to disability discrimination?
if the LFT was a PMALA
explain harassment
a specific form of unwanted conduct that violates the individual’s dignity or creates an intimidating, hostile, degrading or humiliating environment
re: harassment
explain unwanted conduct
The unwanted conduct must either:
o Relate to a PC (not inc. pregnancy/maternity or marriage/CP); or
o Relate to gender reassignment or sex and result in LFT because of their rejection or submission to conduct;
o Be of a sexual nature
explain victimisation
A subjects B to detriment because they know or believe B will or has done a protected act.
re: victimisation
what are the protected acts?
Protected act includes:
o Bringing proceedings, giving evidence or information under the EQA
o Doing anything related to the provisions of the EQA
o Making an allegation someone has breached EQA
explain the duty to make reasonable adjustments
Where the EQA imposes a duty on someone to make RAs and they fail to do so, this will amount to discrimination. The obligations are:
o PCP or physical feature puts a disabled person at a substantial disadvantage compared to a non-disabled person, reasonable steps must be taken to avoid disadvantage.
o If a disabled person would be at a substantial disadvantage compared to a non-disabled person, but for the auxiliary aid, reasonable steps must be taken to provide the auxiliary aid
what are the obligations under duty to make reasonable adjustments
o PCP or physical feature puts a disabled person at a substantial disadvantage compared to a non-disabled person, reasonable steps must be taken to avoid disadvantage.
o If a disabled person would be at a substantial disadvantage compared to a non-disabled person, but for the auxiliary aid, reasonable steps must be taken to provide the auxiliary aid
what is substantial?
- Substantial = more than minor or trivial
are solicitor service providers?
Yes, all solicitors are
what are solicitors obligations are service providers?
SPs must not discriminate or victimise against a person by:
o Not providing them with the service;
o On the terms they provider the service; or
o Subjecting them to detriment or harassment
* Exceptions - marriage/CP and age discrimination of someone under 18
how is the legislation regarding service providers different to other parts of the EQA 2010?
there is no mention of PCs in this part of the EQA
in this context, when does the duty to make reasonable adjustments apply?
to solicitors as service providers and employers
re: solicitors as service providers
explain the duty to make reasonable adjustments
- The adjustments must be reasonable, in other words, there is no need to fundamentally change the nature of the service being provided
o Reasonableness is measure against the cost, size of the firm and nature of services being provided
re: solicitors as service providers
who bears the costs of reasonable adjustments?
- Costs of the adjustments cannot be passed onto the service user (SU)
re: solicitors as service providers
what type of duty is the duty to make reasonable adjustments in this context?
Anticipatory duty i.e. SP must anticipate that disabled people might use their services and make appropriate adjustments rather than waiting for the issue to arise i.e. having the building having wheelchair access
what is vicarious liability?
- If an employee is discriminatory in the course of their employment, their employer can be found VL, even if they didn’t know about it
when will an employer have a defence to vicarious liability?
- The employer will have a defence if they can prove:
o The discrimination didn’t take place in the course of employment; or
o They took reasonable steps before the discrimination occurred to prevent that particular act of discrimination
what is the position regarding costs and liability in relation to vicarious liability?
- The individual cannot double-recover
- The individual will remain personally liable, even if the employer is not VL
re: solicitors as service providers
how would a client bring a claim where there has been a failure to make reasonable adjustments?
- A client would bring a claim in the county court
- The client must make a prima facie case of discrimination
re: solicitors as service providers
if the client makes a claim, who has the burden of proof?
- The client must make a prima facie case of discrimination
- BOP then shifts to the defendant
re: solicitors as service providers
if the client makes a claim, what remedies are available?
- Any remedy the HC can give in a JR or tort case i.e. damages, declarations or injunctions
re: solicitors as service providers
what damages can be awarded if a claim is made?
- Damages can be aggravated or exemplary and there is no limit
re: solicitors as employers
in terms of harassment and victimisation, what duty to solicitors owe prospective employees?
Employers must not discriminate or victimise against a prospective employee:
o In the arrangements when deciding to whom to offer employment;
o As to the terms of the employment; or
o By not offering the employment
re: solicitors as employers
in terms of harassment and victimisation, what duty to solicitors owe current employees?
Employers must not discriminate or victimise against a current employee:
o As to the terms of their employment;
o In the way opportunities for promotion, transfer, training or receiving a benefit, facility or service are offered (or not offered);
o By dismissing the employee; or
o Subjecting them to any other detriment
re: solicitors as employers
who is included in the definition of prospective/employees?
- Partners and members to an LLP are included as prospective/employees here
when does the principle of vicarious liability apply?
when solicitors are service providers and employees
re: solicitors as employers
explain ‘occupational requirements’
give an example
if the employer can prove that the nature of the job requires people with a PC to do it, this can be justified if it is a PMALA
i.e. Roman Catholic school required head teach to be Catholic
This is unlikely to apply in the context of a solicitor’s firm
re: solicitors as employers
to whom does the duty to make reasonable adjustment apply?
employees and prospective employees
re: solicitors as employers
when does the duty to make reasonable adjustments arise?
The duty only arises when the employer knew or ought to have known that a person is disabled and they are likely to be substantially disadvantaged
The duty is not anticipatory, it applies to specific individuals
o i.e. a firm need not modify the recruitment process to accommodate the possibility of a disabled applicant, but only when the employer knew or ought to have known a specific person might suffer disadvantage
re: solicitors as employers
how would someone make a claim?
- Claim would be made in the employment tribunal
- Claimant does not need to prove physical or financial loss
re: solicitors as employers
if someone makes a claim, what is the question for the court?
would a reasonable employee take the view that they had been disadvantaged in the circumstances?
re: solicitors as employers
if someone makes a claim, what remedies are available?
damages for loss or injury to feelings, declarations of employee’s rights, make recommendations for the employer
re: positive action
what is this?
PA provisions allow employers to take action that may involve treating one group that shares a PC more favourably than others where this is a PMALA
re: positive action
is there an obligation in terms of PA?
There is no duty to implement PA but it will not be unlawful
re: positive action
how does positive action apply to solicitors?
as service providers and employers
re: positive action
when can this be taken?
Where it is reasonably believed persons who share a PC and it is a PMALA regarding one of the specified aims
re: positive action
explain ‘reasonably believes persons who share a PC’
o Suffer disadvantage connected to it; or
o Have different needs to those that do not have it;
o Participation in an activity is disproportionately low1. Reasonably believes persons who share a PC:
o Suffer disadvantage connected to it; or
o Have different needs to those that do not have it;
o Participation in an activity is disproportionately low
There must be evidence to support this i.e. survey of clients
re: positive action
what are the PMALA aims?
o Overcome or minimise disadvantage
o Meeting the needs of those who share a PC
o Encourage participation
re: positive action
explain ‘overcome or minimise disadvantage’
Targeting services at specific disadvantaged groups i.e. less women in STEM due to less visible role models. Literary prize for female scientist created.
re: positive action
explain ‘meeting the needs of those who share a PC’
Providing services in a different way, time or location i.e. school identifies white males are underperforming at maths, so they run supplementary maths classes exclusively for them
re: positive action
explain ‘encourage participation’
i.e. local orchestra has no African musicians, even though there is a large African community in the area. Orchestra teams up with prominent African musicians to search for new talent i.e. open trials for young African people and extra free tuition.
re: positive action
what does ‘proportionate’ involve?
Proportionate involves considering the objective, cost, seriousness of disadvantage, degree to which it is needed, extent of low participation
re: postive action
when will positive action be discriminatory?
If the aim could be achieved by less discriminatory means, then this may amount to discrimination against persons without the PC
re: positive action
when can positive action be taken in the recruitment and promotion process?
PA can be taken where they reasonably believe persons who share a PC:
o Suffer disadvantage connected to it; or
o Participation in an activity is disproportionately low
re: positive action
if the threshold is met, when can an employer use positive action methods?
the employer can treat a person more favourably in R/P than another person because they have a PC, if:
o Both candidates are equally qualified (inc. skill and qualifications);
o The employer does not have a policy treating those who share the PC more favourable in connection with R/P; and
o It is a PMALA
re: positive action
what is an example of lawful PA in the recruitment/promotion process?
employing a disabled person in a tie-break situation where both candidates are equally qualified
re: positive action
what is an example of unlawful PA in the recruitment/promotion process?
policy where all disabled applicants will be interviews
what are the obligations on barristers in relation to a prospective employee?
Barristers must not discriminate or victimise against a prospective employee:
o In the arrangements when deciding to whom to offer a pupillage / tenancy (P/T);
o As to the terms of the P/T; or
o By not offering the P/T
what are the obligations on barristers in relation to a prospective pupil or tenant?
Barristers must not discriminate or victimise against a pupil or tenant:
o As to the terms of their P/T;
o In the way opportunities for promotion, transfer, training or receiving a benefit, facility or service are offered (or not offered)
o Terminating their P/T;
o Subjecting them to pressure to leave chambers or other detriment
what are barristers obligations in terms of harassment?
Barristers must not harass a prospective or current pupil or tenant
what duty applies to barristers?
the duty to make reasonable adjustments
what obligations are on the client when instructing a barrister?
When instructing a barrister, a person must not:
o Discriminate against the barrister or their clerk by subjecting them to detriment;
o Harass or victimise the barrister
how does the EQA overlap with STARS?
- Solicitors cannot unfairly discriminate and allow personal views to affect professional relationships
o Acting in this was would breach P2 - Firms must monitor and public data about diversity of work force
- P6 must act in a way which encourages EDI.
