Equality Act 2010 Flashcards
What are the 9 protected characteristics under the EA 2010?
Race
Religion and belief
Sex
Sexual orientation
Age - covers all ages
Disability
Gender reassignment - refers to people who are proposing to undergo, are undergoing or have undergone treatment for the purpose of reassigning the person’s sex
Marriage/civil partnership - doesn’t cover single people
Pregnancy and maternity
Give some more details on the ‘religion and belief’ characteristic
Absence of belief is also covered
Belief must be genuinely held, relate to a substantial part of human life, attain a certain level of cogency and be worthy of respect
Give some more details on the ‘disability’ characteristic
Person has a disability if:
- They have a physical or mental impairment; and
- The impairment has a substantial and long-term adverse effect on their ability to carry out normal day to day activities
What forms of discrimination are covered under the EA 2010?
Direct discrimination
Indirect discrimination
Disability discrimination
Victimisation
Harassment
What is direct discrimination?
A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others
Elements:
1) Comparator – treatment experienced must be different from that of another real or hypothetical person
- Victim must compare the treatment they received to another who does not have the protected characteristic
- Relevant circumstances of claimant and comparator should be the same or not materially different
2) Less favourable – any disadvantage would suffice for less favourable treatment; Objective test
3) Protected characteristic – this must be the cause of the treatment
When can direct discrimination be justified?
In relation to age but only if the treatment was a proportionate way of achieving a legitimate aim
What is indirect discrimination?
Occurs when a policy or practice is put in place which is of universal application, but has an adverse impact on those who share a protected characteristic
Might be justified by showing it was a proportionate means of achieving a legitimate aim
What is disability discrimination?
A person (A) discriminates against a disabled person (B) if A treats B unfavourably
because of something arising in consequence of B’s disability
- No requirement to compare the treatment received with the treatment of others
- The perpetrator must have known, or reasonably be expected to have known, that the disabled person had a disability
May be justified by showing it was a proportionate means of achieving a legitimate aim
What is victimisation?
A person (A) victimises another person (B) if A subjects B to a detriment because
(a) B does a protected act, or
(b) A believes that B has done, or may do, a protected act.
- A doesn’t need to have a protected characteristic themselves
A protected act could be:
- bringing proceedings under the Act;
- giving evidence or information in proceedings brought under the Act;
- doing anything which is related to the provisions of the Act;
- making an allegation that another person has done something in breach of
the Act.
What is harassment?
Victim suffers a specific form of unwanted conduct
This conduct must be:
* relate to a protected characteristic (except pregnancy/maternity and marriage/civil
partnership);
- be of a sexual nature; or
- be of a sexual nature or related to gender reassignment or sex and result in less
favourable treatment because of the individual’s rejection of or submission to the conduct.
What is the duty to make adjustments to avoid unfairness in relation to disability?
Where one of the following puts a disabled person at a substantial disadvantage, reasonable steps must be taken to avoid this:
- Provision, criterion or practice
- Physical features of building
- Provision of auxiliary aid - Where, but for the provision of an auxiliary aid, there would be substantial disadvantage, reasonable steps must be taken to provide the auxiliary aid
Failing to take reasonable steps is discrimination
What duties do solicitors owe the public as service providers?
People with protected characteristics should not be discriminated against when using any service
Vicarious liability applies to discrimination - acts done by an employee, that are committed in the course of their employment, are treated as if done by the employer (applies regardless of absence of knowledge or approval)
Anticipatory duty to make adjustments in relation to disabled people and their access to the service - cannot wait for issues to arise
What duties do employers have to their employees?
Employer cannot discriminate against prospective employees, or harass/discriminate against current ones
Vicarious liability - employer liable for discriminatory acts of employees
They also have a duty to make adjustments for disabled employees or prospective employees
What is positive action?
Allows positive steps to be taken, in certain circumstances, to favour those with a protected characteristic, if:
- The firm believes this person/group suffers a disadvantage, has different needs or participates in a given activity in a disproportionately low number; and
- The positive action is a proportionate means of helping them overcome/minimise the disadvantage, meet their needs or enable their participation in the activity
Can also treat an equally qualified prospective employee with a protected characteristic more favourably
Can apply in workplace situations too (limiting access to a scheme to female workers for a period of time; indefinitely would be disproportionate)
How does the EA 2010 overlap with professional conduct for solicitors?
Failing to comply with the EA 2010 will likely undermine trust and confidence in the profession
Solicitors must also not unfairly discriminate by allowing their personal views to affect their professional relationships and the way in which you provide your services (Para 1.1 COC)
Principle 6 – solicitor must encourage EDI in all aspects of their lives
