U1 Overring Legal Obligations - Equality Act

Question 1

Who do the overriding obligations apply to?

Answer 1

All legal proffesionals, irrespective of if they are regulated or not.

Question 2

What are the 2 overriding obligations?

Answer 2

1. The Equality Act 2010
2. Anti-Money Laundering Legislation (Proceeds of crime act 2002)

Question 3

How many protected characteristics are there as per the Equality Act of 2010?

Answer 3

9

Question 4

What are the 9 Protected Characteristics of the Equality Act of 2010?

Answer 4

1. Age
2. Disability
3. Gender Reassignment
4. Marriage / Civil Partnerships
5. Pregnancy and Maternity
6. Race
7. Religion or Beliefs
8. Sex
9. Sexual Orientation

Question 5

What are the 6 prohbited conducts arrising from the equality act of 2010?

Answer 5

1. Direct Discrimination
2. Indrect Discrimnation
3. Discrimination Arrising From Disability
4. Harassement
5. Victimisation
6. Not complying with the duty to make resonable adjustments (direct discrmination)

Question 6

What are the 3 elements for Direct Discrimination for the purposes of the Equality Act 2010?

Answer 6

They were treated less favourably then someone else because of their protected characteristic.

1. The victim must show that another person would have been treated differently
2. Their treatment was less favourable
3. The reason for the less favourable treatment was because of their protected characteristic.

Direct discrimination can also be constituted by failing to make reasonable adjustments

Question 7

What is indrect discrimination?

Give an example

Answer 7

When a policy, practice, or rule applies generally BUT has the effect of adversley impacting those who share a protected characteristic.

For Example: a company may have a policy that all employees must be able to travel at very short notice. Whilst this applies generally to all employees, it is likely to adversely impact female employees as they are more likely to have childcare responsibilities.

Question 8

When may Indirect Discrimination be justified?

Answer 8

when the discrimination is a proportionate way of achieving a legitimate aim.

Question 9

What is the diffrence in grounds that need establishing for Direct Discrination v Discrimnation arrising from a disability?

Answer 9

Unlike direct discrimination, the claimant is not required to compare their treatment with others.

They just need to show they was treated less favourably because of their disability, or something arrising from their disability?

Question 10

Can discriination arising from disability be jusified?

Answer 10

May be justified when the discrimination is a proportionate way of achieving a legitimate aim.

Question 11

What 2 prohbited conducts can be justified in accordance with the equality act of 2010?

Answer 11

1. Indrect Discrimnation
2. Discrimination arrising from a disability

May be justified when the discrimination is a proportionate way of achieving a legitimate aim.

Question 12

What is harrasment for the purposes of the equality act 2010?

How does this apply to sexual harrasment?

Answer 12

Harassment is where:

1. someone is subject to unwanted conduct that relates to certain protected characteristics (all but marriage / civil partnership) and
2. The unwanted conduct:

a) Violated the victims dignity

b) or creates an intimidating, hostile, degrading, humiliating or offence environment for that person.

Sexual Harassment

The above also applies to sexual harassment if the victim is treated less favourably than they would have been treated because they rejected or submitted to the unwanted conduct even without a protected characteristic.

Question 13

What is Victimisation for the purposes of the equality act?

Answer 13

Where a person is subject to a detriment (disadvantage) because it is believed the person has done, or will do, a protected act.

Question 14

What is a protected act for the purposes of victimisation under the equality act?

Answer 14

Protected Acts:

1. Bring Proceedings under the Equality Act
2. Give evidence or information in proceedings brought under the equality act
3. Do anything that is related to the Provisions of the Equality Act
4. Alleging that another person has done something in breach of the quality Act

NB: It does not need to be shown the victim has a protected characteristic.

Question 15

What is the positive obligation of the equality act?

Answer 15

The act provides a duty to make reasonable adjustments.

Not making reasonable adjustments constitutes direct discrimination.

Reasonable steps must be taken to prevent a disabled person being put at a SUBSTANTIAL DISADVANTAGE because of:

1. A provision, criterion, or practice (i.e the practice of only providing information in a standard format)
2. A physical feature (i.e not having wheel chair access)
3. Lack of provision of an auxiliary aid (Specalist equipement)

Question 16

What are solicitors obligations as service providers in accordance with the equality act 2010?

Answer 16

All service providers are prohibited from treating service users in certain ways.

Therefore, a solicitor must not:

1. Discriminate against or victimise a prospective client in respect of terms of service
2. Discriminate or victimise a client by terminating services provided to a client / perspective client
3. Discriminate against or victimise a client by subjecting the client to any other detriment
4. Harass a client / prospective client.

Question 17

Is the duty to make reasonable adjustments a proactive duty?

Answer 17

Yes, Firms must adopt a proactive rather than restrictive approach, this means they should take reasonable steps regardless of whether a disabled client has made a complaint. What is reasonable will have regard to factors such as cost and resources of the firm.

Question 18

What is the diffrence in the duty to make reasonable adjustments for clients v employees.

Answer 18

For clients, the firm must take a proactive approach. For example, they should wait for a disabled person to complain there is no wheel chair acsess, they should ensure in the first place they have made reasonable adjustments.

For employees, firms are only required to make adjustments when they know, or are ought to know, that the employee is disabled and is likley to suffer a disadvantage.

Question 19

Can employeers be vicariously liable for their employees breach of the equality act?

Answer 19

Employers can be liable for their employees breaches of the equality act, even if they was unaware of the conduct.

However, they may escape liability if they can show they took reasonable steps to prevent such behaviour (such as providing training)

Question 20

What are the unlawful acts frims are not allowed to do when hiring with regards to the equality act?

Answer 20

Firms cannot discriminate or victimise in respect of:

1. Recruitment arrangements
2. declining to offer employment
3. Terms of employment

For example, only higher Ing people younger than 40

Question 21

What are the unlawful act frims are not allowed to do to their employees with regard to the equality act 2010?

Answer 21

Firms must not subject an employee to harassment and must not discriminate against or victimise an employee:

1. as to their terms of employment
2. in the way it affords access to opportunities for promotion, transfer or training, or for receiving any other benefit, facility or service.
3. By dismissing the employee or
4. By subjecting the employee to any detriment.

Question 22

What is postive action? When is it allowed?

Answer 22

(Reverse discrimination as i call it)

Firms may treat an employee or prospective employee more favourable because of their protected characteristic.

This is only lawful where the firm reasonably believes that persons who share a protected characteristic:

1. Suffer a disadvantage connected to the characteristic, or
2. have different needs, or
3. are disproportionately underrepresented in respect of a particular activity,

And the positive action is proportionate way of redressing the situation.

This can apply in employment, but can only be lawful if the candidate with the protected characteristic is as suitable for the role as others. Positive action can only be used where there is a tierbreak situation between 2 equally suitable candidates.