WS1 - Equality Act 2010 Flashcards
What is the Equality Act?
Concerned with protecting rights of the individual and ensuring fair treatment and equality of opportunity for all.
What are 9 protected characteristics under the Act?
- s9 Race
- s10 Religion and belief
- s12 Sex
- s5 Age
- s6 Disability
- s7 Gender reassignment
- s8 marriage / civil partnership
- s4 pregnancy and maternity
What are solicitor’s duties under the act?
- Solicitors have a duty to not refuse to act for a client based on a protected characteristic.
- Duty to make reasonable adjustments for disabled persons, employees or prospective employees
What is prohibited conduct in the Equality Act?
1) Direct discrimination
2) Indirect discrimination
What is direct discrimination?
When a person is treated less favourably than someone else would have been in the same situation and a reason for this is due to a protected characteristic
Comparator - treatment experienced must be different from that from another real or hypothetical person (e.g. compare the treatment of me vs. gjuli)
Less favourable - objective and no need to show that the perpatrator intended to treat the victim les favourably
Protected characteristic - needs to be the cause of the treatment - not the main or sole reason, just an influence
Can direct discrimination take place because of a protected characteristic that a person is assumed have?
Yes, a person can be discriminated against because of their association with a person who has a protected characteristic, or because they are wrongly perceived to have one.
E.g. you look like you have a disability even though you don’t - still direct discrimination
What are the two grounds upon which direct discrimination can be justified?
- Age
- Disability
What is indirect discrimination?
E.g. a policy or practice is imposed on employees, but can effect members of a particular group.
E.g. employer requiring an employee to work full time could disadvantage women as a group since women in society bear a greater part of domestic and childcare responsibilities and may want to work part time.
What must be shown of measures that directly discriminate on the basis of age or disability, or that indirectly discriminate on any ground?
They are a proportionate means of achieving a legitimate aim
When assessing proportionality, what will the courts look at?
Whether there is another less discriminatory way of achieving the same aim
What is the only way in which indirect discrimination due to disability can be justified?
A person can treat someone unfavourably because of something arising in consequence of another’s disability, if they can show the treatment is a proportionate means of achieving a legitimate aim.
For this type of discrimination to occur - perpetrator must have known or reasnoably be expected to have known that the disabled person had a disability.
Why is discrimination of a protected characteristic - disabillity different to the rest?
There is no requirement to compare the treatment of a disabled person with another disabled person.
If they are treated less favourably - sufficient.
Does the prohibition against discrimination apply to the provision of services?
Yes
What is a firm’s obligation regarding disabled employees and clients?
They must provide reasonable adjustments such that these parties are not at a substantial disadvantage, and must not pass the costs on
Does “reasonable adjustments” means that all requirements must be catered for?
No, only those which are reasonable
What is victimisation?
Person A victimises another (person B) if A subjects B to a detriment because
* B does a protected act or
* A believes B has done or may do a protected Act
Protected Act
* 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 the other person has done something in breach of the act
Maya is a legal secretary employed by a firm of solicitors. Maya is bringing a claim against the firm under the Equality Act 2010. Maya’ s claim is that she was passed over by the firm for promotion on account of her race. Karen is also a legal secretary working for the same firm. Karen agrees to give evidence on Maya’ s behalf. As a consequence, in the firm’ s next round of pay reviews Karen is singled out and is not given any increase in her salary. Here the firm’ s actions would amount to victimisation. Karen would be able to bring her own claim against the firm under the Act.
What is harrasment?
When an invidual is subjected to a specific form of unwanted conduct which has the effect of violating the individuals dignity creating an intimidating, hostile or humiliating or offensive environment for that individual.
Must be
* in relation to protected characteristic (except pregnancy,maternity and marriage)
* be of sexual nature
* be of sexual nature relating to gender reassignment
What is unlawful behaviour of a service provided under part 3 of the Equality Act?
- To discriminate an individual based on a protected characteristic when using a legal service - e.g. client or prospective client
- Harass a client based on a protected charactersitic
- Victimise a client when providing a legal service
- Refusing to act for a client or providing legal services on less advantageous terms or terminating the retainer
To which groups does Part 3 of the Equality Act 2010 not apply to?
- Marriage
- Age
- Individual under 18
If an individual at a law firm discriminates, who is liable the individual or firm?
An act done by an employe is treated as done by the employer.
- Firm may be held vicariously liable for the behaviour of an individual employee.
- Even if the firm didn’t have knowledge or approval
- Has to be during the course of their employment
What defence is available to the firm regarding vicarious liability?
That they took reasonable steps to prevent the discrimination - must have been taken before the discrimination took place.
Who has the burden of proof regarding a claim under the Equality Act and what remedy is available?
- Can be made to the county court
- Burden of proof lies with the claimant to show prima facie case of discrimination and must prove facts
- Burden then shifts to defendant if the court believes that there has been a breach of the legislation
- Damages - financial loss, personal injury and compensation for injury to feelings
What is positive action?
Positive action to be taken in an attempt to address the disadvantage by those who share a protected characteristic.
- E.g. tailoring its services to meet requirements
- Provide specific training to employees
What SRA principles overlap with the Equality Act?
- Equality – treating people fairly
- Diversity – encouraging and valuing people with a broad range of different backgrounds, knowledge, skills, and experiences
- Inclusion – acceptance and encouraging everyone to participate and contribute
