Overriding Legal Obligations Flashcards
What is the overriding ethos of the Equality Act 2010
Everyone is to be treated fairly
What does the Equality Act try to eliminate
Unjustifiable Discrimination
&
Unfair Treatment
What is a protected characteristic
Personal characteristics that are safeguarded under the Equality Act
What are the 9 protected characteristics
Age
Disability
Gender Reassignment
Marriage/Civil Partnerships
Pregnancy & Maternity
Race
Religion or Beliefs
Sex
Sexual Orientation
What is prohibited conduct under the EA 2010
Unlawful behaviour
What are the types of prohibited conduct
Direct discrimination
Indirect discrimination
Disability discrimination
Harassment
Victimisation
What is direct discrimination
Where a person is treated less favourably due to a protected characteristic
What are the three conditions to prove direct discrimination
Victim must show:-
Another person would have been treated differently
Treatment was less favourable because of protected characteristic
What is indirect discrimination
Policy, practice or rule applies but impacts one of the characteristics
What is disability discrimination
A person treated unfavourably because of their disability
(No need to compare the treatment with another like direct discrimination)
What is harassment
Unwanted conduct:-
To a protected characteristic
And violates dignity
Or creates a hostile working environment
What is victimisation
Where a person treats another person less favourably because they have raised an issue with their conduct about a protected act
What is a duty to make adjustments
Duty to make reasonable adjustments
A failure to comply with a duty to adjustments mean what?
Discrimination
What is the test for a duty to make adjustments
REASONABLE steps must be taken to prevent a SUBSTANTIAL disadvantage
When firms are making adjustments for disabilities what approach should they take
A proactive approach not a reactive approach
Can costs for reasonable adjustments be passed onto clients
No
When considering what adjustments are necessary what does the court take into consideration
Costs and resources
What obligations do solicitors owe their employees
Unlawful acts: employees & prospective employees
Making adjustments: employees & prospective employees
Vicarious Liability
Positive Action
What adjustments should be made for employees and prospective employees
Reasonable adjustments which they know or ought to have known about and is likely to suffer a disadvantage
What is vicarious liability
Unlawful act of their employees committed during the course of their employment
Can employers escape vicarious liability
Yes if they can show they took all reasonable steps to prevent the behaviour e.g training
What is positive action
Treating someone with a protected characteristic more favourably
Positive Action
Only permitted where the person with the protected characteristic is as suitable for the role as others.
(Tiebreak situation in interview)
What is money laundering
Method used by criminals to conceal unlawful sources of money from criminal activity making it appear the money is from a legitimate source.
What is proceeds of crime
The benefit that comes from the criminal activity.
I.e. money from selling drugs
What is the three stage of money laundering?
Placement - dirty money
Layering - washed money
Integration- clean money
What does placement mean in money laundering?
Money being introduced to the financial system
What does layering mean in money laundering?
Money passing through parties/transactions so that it distances the money from criminal activity
What does integration mean in money laundering?
Money in the financial system that the criminal has possession of.
Laundered money
Who is the money laundering and terrorist watchdog?
Financial Action Task Force
What does the FATF stand for?
Financial Action Task Force
What does the FATF do?
Inter governmental body that sets international standards designed to prevent money laundering.
Where are the laws set by the FATF for the UK found?
Money Laundering, Terrorist Financing and Transfer Funds Regulations 2017 and POCA.
What are the 5 money laundering regulations law firms must abide by?
- Maintain a Risk Assessment
- Maintain risks from the assessment
- Must appoint a MLCO & MRLO
- Must provide staff with training
- ID of clients to be verified
What is a MLCO
Money Laundering Compliance Officer
Responsible for firms compliance of the rules
What is a MLRO?
Money Laundering Report Officer
Responsible for reporting suspicious activity
What is customer due diligence?
Measures in place to verify the ID of a client
How long must a clients ID be kept for?
5 years
What timeframe should ID be obtained?
Must take place as soon as possible after first contact
When must solicitor carry out CDD?
- Forming a business relationship
- Carrying out occasional transaction around £15000
- Solicitor suspects ML
- Doubts accuracy of docs
What is simplified due diligence?
Permitted when it’s low risk
(Well known company)
When is enhanced due diligence needed?
Examining background
Examining purpose of transaction
Increased monitoring
Extra steps to verify clients id
When MUST EDD be applied?
High risk third county
PEP or associate of them
Having never met client in person
What are some warning signs to look out for in ML?
Secretive
Uncooperative
Evasive
Behaviour
Unusual sources of funding
Urgency
Jurisdiction movement
If a solicitor suspects ML what should they do?
Report to the MLRO who considers whether to report to NCA
What time period should ML be reported?
As soon as practicable
What is the Proceeds of Crime Act?
Offences concerned with Money Laundering
What are direct involvement POCAS?
327 - Concealing/disguises/coverting
328 - facilitates or assists ML (know or suspect)
329 - enjoys the benefits of ML
What are non direct involvement POCAS?
330 - fail to disclose ML (known/suspect) ought to have known
331- as above but specific to MLRO
333A - tipping off offences
What are the 6 defences to ML?
Consent Defence
Reasonable Excuse Defence
Adequate Consideration Defence
Training Defence
Privileged Defence
Legal Overseas Defence
What is the consent defence ML?
MLRO can ask for consent for the transaction.
If NCA has not responded within 7 MLRO can deem consent provided
S327,328,329
What is the Reasonable Excuse Defence?
When a solicitor/MLRO intended to make a disclosure but had a reasonable excuse for not doing so.
(No guidance on reasonable excuse)
S327,328,328,330,331
What is adequate consideration defence?
Adequate payment for their services
S329
What is Training Defence?
Firms must provide adequate training on ML failure to do so gives the employee a defence
S330
What is Privileged Circumstances defence?
Client or representative seeking advice
S330
What is Legal Overseas defence?
Where criminal conduct is abroad and lawful in that country and had it occurred in the UK not punishable by 12 months or more
