Overriding legal obligations Flashcards
What are the protected characteristics in the Equality Act 2010?
- age
- disability
- gender reassignment
- marriage/civil partnerships
- pregnancy and maternity
- race
- religion or beliefs
- sex
- sexual orientation
What are the key types of prohibited conduct?
- direct discrimination
- indirect discrimination
- discrimination arising from disability
- harassment
- victimisation
What is direct discrimination?
direct discrimination occurs where a person is treated less favourably that someone else would have been in the same situation AND that difference in treatment is because of one of the protected characteristics
What is indirect discrimination?
It occurs when a policy, practice or rule applies generally but has the effect of adversely impacting those who share a protected characteristic.
When is indirect discrimination justified?
Where the policy, rule or practice aims to achieve a legitimate aim. It also must be a proportionate way of achieving the legitimate aim
What is discrimination arising from disability?
When a person treats a disabled person unfavourably because of the person’s disability or because of something arising from the disability
What is harassment?
When a person is subjected to unwanted conduct that relates to certain protected characteristics and the unwanted conduct violates the victim’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person. It can also be conduct of a sexual nature and the person is treated less favourably than they would have been treated because they rejected or submitted to the unwanted conduct
What is victimisation?
Where a person subjects another person to a detriment because they believe that person has done, or will do, a protected act.
What is a protected act?
- bringing proceedings under the Equality Act 2010
- giving evidence or information in proceedings brought under the Equality Act
- doing anything that is related to the provisions of the Equality Act
- alleging that another person has done something in breach of the Equality Act
Does a victim of victimisation need to establish they have a protected characteristic?
No
A solicitor will be deemed to have discriminated against a disabled person if they fail to comply with what?
The duty to make reasonable adjustments
Firms must adopt a what approach?
Proactive rather than reactive approach
What is positive action/discrimination?
When an employer may treat an employee or prospective employee more favourably because they have a protected characteristic.
When is positive discrimination lawful?
Where the firm reasonably believes that persons who share a protected characteristic:
- suffer a disadvantage connected to the characteristic
- have different needs
- are disproportionately underrepresented in respect of a particular activity
- the positive action taken by the firm is a proportionate way of redressing the situation
What is money laundering?
A method used to make it appear as though proceeds of crime derive from legitimate sources
What are the key duties that derive from the money laundering regulations?
- maintain a written risk assessment that assess the risk of the firm being used from money laundering - reg 18
- establish and maintain policies, controls and procedure - reg 19
- appointment of a money laundering compliance officer and money laundering reporting officer
- provide staff with training
- verify the identity of each of their clients (customer due diligence)
When must solicitors carry out CDD?
- forming a business relationship
- carrying out an occasional transaction that amounts to or exceeds approx. £15k
- the solicitor suspects money laundering
- the solicitor doubts the accuracy or adequacy of documents or information provided for CDD purposes
When a client is a corporate body, solicitors must obtain and verify what?
- its name
- the company number
- the address of its registered office
- where the corporate body is not listed on a regulated market, the solicitor should ascertain the law the body is subject to, its constitution and the names of the board of directors and senior persons
When must enhanced due diligence be applied?
- a person established in a high-risk third country
- a politically exposed person
- a family member/known associate of a PEP
- any other situation that presents a higher risk of money laundering (never met the client in person)
What are some examples of ‘warning signs’ solicitors should look out for for money laundering?
- secretive behaviour
- uncooperative
- evasive
- avoids personal contact
- refuses to provide information or documents
- known to associate with criminals
- unusual sources of funding
- insistent on completing urgently
- completing a loss-making transaction
- client is not local to the firm
- unnecessary movement of money
If a solicitor knows or suspects that a client is engaged in money laundering activity they _ report their concerns
Must
Who must a solicitor report known or suspected money laundering activity to?
The firm’s nominated officer/MLRO
When must an SAR be submitted to the NCA?
Where the nominated officer knows or suspects money laundering activity
What are the direct involvement offences under POCA 2002?
s327 - if a solicitor conceals, disguises, converts or transfers criminal property or removes it from the UK
s328 - is a solicitor enters into or becomes concerned in an arrangement which they know or suspects facilitates the acquisition, retention, use or control of criminal property by or on behalf of another person
s329 - if a solicitor acquires, uses or has in possession of criminal property
