1. Equality Act 2010

Question 1

Under the Equality Act 2010, is discrimination addressed using civil or criminal law?

Answer 1

Civil law

Question 2

Who brings a claim for a breach of the Equality Act 2010?

Who decides claims?

Answer 2

Individual action taken by victim

Employment claims: Employment Tribunal

Question 3

What powers do the EHRC have?
Do they have any relevance to the courts?

Answer 3

Produce guidance on compliance with the act & codes of practice

Courts/tribunals can take this into account

Question 4

What are the 9 protected characteristics under the EA 2010?

Answer 4

1. Race
2. Religion & belief
3. Sex
4. Sexual orientation
5. Age
6. Disability
7. Gender reassignment
8. Marriage / civil partnership
9. Pregnancy & maternity

Question 5

What does ‘race’ include?

Answer 5

Colour
nationality
ethnic or national origins

Question 6

What does religion & belief include?

Answer 6

Any religion & philosophical belief
Absence of religion & philosophical belief

Belief:
1. genuinely held
2. belief, not a view point
3. relate to a substantial part of human life
4. attain a certain level of cogency
5. worthy of respect

Question 7

What does ‘sexual orientation’ include?

Answer 7

Same sex
Opposite sex
both

Attraction & behaviour

Question 8

What does ‘age’ involve?

Answer 8

All ages

dealt with differently under the Act as n some instances different treatment based on age can be justified.

Question 9

How is disability defined?

Answer 9

1. physical or mental impairment
2. that has a substantial and long-term adverse affect on their ability to carry out normal day-to-day activities

(high threshold)

Question 10

What does ‘gender reassignment’ involve?
Do they need to be under medical supervision in order to be protected?

Answer 10

people people who are proposing to undergo
are undergoing or
have undergone
treatment for the purpose of reassigning the person’s sex (s 7).

The definition does not require the individual to be under medical supervision in order to be protected under the Act

Question 11

Who is covered by ‘marriage / CP’?

Answer 11

Only those legally married or in a CP

Question 12

What are the 5 types of prohibited conduct?

Answer 12

Direct discrimination
Indirect discrimination
Disability discrimination
Victimisation
Harrassment

Question 13

What is direct discrimination?

Answer 13

Direct discrimination occurs when a person is treated less favourably than someone
else would have been in the same situation and the reason for the difference is one of the protected characteristics

Question 14

Who is the comparator?

Answer 14

Real or hypothetical person who does not share claimant’s protected characteristic

There can be a hypothetical comparator if no actual comparator available

relevant circumstances of claimant & comparator should be the same or not materially different

Question 15

What is less favourable treatment?
Does there need to be tangible or material loss?

Is the test objective or subjective?

Is motive relevant?

Answer 15

Any disadvantage is sufficient
No need for tangible or material loss

Objective test

Motive not relevant to test. but may be to remedy. Aggravated damages may be awarded if behaviour was malicious or oppresive.

Question 16

Does the claimant’s protected characteristic have to be the sole or main reason for the less favourable treatment?

Can it apply where the claimant is assumed to have a protected characteristic that they do not actually have?

Answer 16

No, just needs to be an influence.

Yes

Question 17

Any defences to direct discrimination?

Answer 17

No general defences

Except for in relation to age:
defence if it was a proportionate way of achieving a legitimate aim.

More detailed provisions for pregnancy and maternity

Question 18

What is indirect discrimination?

Answer 18

, indirect discrimination occurs when a policy or practice is put in place which is of universal application, but which has an adverse impact on those who share a protected characteristic

Question 19

Any defences to indirect discrimination?

Answer 19

Proportionate way of achieving a legitimate aim

Question 20

Do the provisions for indirect discrimination apply to all protected characteristics?

Answer 20

No. The provisions in the Act relating to indirect discrimination do not apply to pregnancy/ maternity.

Question 21

What is disability discrimination?

Answer 21

It is discrimination to treat a disabled person less favourably not only because of the individual’s disability itself but also because of something arising from, or in consequence of, that disability.

In contrast to s 13, there is no requirement in s 15 to compare the treatment received by the disabled with the treatment of others.

For this type of discrimination to occur, the
perpetrator must have known, or reasonably be expected to have known, that the disabled person had a disability

Question 22

Is there a defence for disability discrimination?

Answer 22

Proportionate means of achieving a legitimate aim

Question 23

What is victimisation?

Answer 23

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 protected act is any of the following:
* 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.

The victim does not need to have a protected characteristic in order to receive protection from victimisation under the Act.

The term ‘detriment’ is not defined under the Act, but it would encompass any act which has the effect of putting the individual at a disadvantage or of making their position worse.

Question 24

Does a victim need to have a protected characteristic in order to receive protection from victimisation under the Act?

Answer 24

No
The victim does not need to have a protected characteristic in order to receive protection from victimisation under the Act.

Question 25

What is harassment?

Answer 25

individual is subjected to a specific form of unwanted conduct which has the effect of violating the individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual. The unwanted conduct must: * 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

Question 26

What does the duty to make reasonable adjustments for disabled persons involve? (3 requirements) What is A 'substantial disadvantage'? Consequence of failing to comply with this duty?

Answer 26

the Act imposes a positive duty to take steps to avoid unfairness occurring in the first place 1. Provision, criterion or practice A provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, reasonable steps must be taken to avoid the disadvantage. 2. Physical features A physical feature puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, reasonable steps must be taken to avoid the disadvantage. 3. Provision of auxiliary aid Where a disabled person would, but for the provision of an auxiliary aid, be at a substantial disadvantage in comparison with persons who are not disabled, reasonable steps must be taken to provide the auxiliary aid. ‘Substantial’ is defined as ‘more than minor or trivial’. The threshold is therefore relatively low A failure to comply with any of these requirements in respect of an individual is discrimination

Question 27

Does the act apply to solicitors giving free legal advice?

Answer 27

There is no requirement that the provider receive payment for the services. Consequently, the Act also applies to solicitors providing free legal advice.

Question 28

Under the Act, what is it unlawful for a service provider to do? Who does it apply to? (ie stage of service provision) Does it apply to all protected characteristics?

Answer 28

1.to discriminate or victimise: ∘ by not providing the service ∘ as to the terms on which the service is provided by terminating the provision of the service, or ∘ by subjecting the user of the service to any detriment. 2. Or to harass the person to whom the service is provided The protection applies to seeking the service, during the provision of the service and can extend to after the service has been provided The prohibition applies to all the protected characteristics except marriage/ civil partnership and age, where the individual is under 18 years of age

Question 29

Under the Act, can a firm be held vicariously liable for an act done by an individual employee? (as service providers & employers) Defences? Is the firm's knowledge or approval relevant?

Answer 29

Yes. a firm may be held vicariously liable for the behaviour of an individual employee. only arises in respects of an act of discrimination which was committed by an employee in the course of their employment. a firm will be able to avoid vicarious liability if it can show that they took such steps as were ‘reasonable’ to prevent the particular act of discrimination or acts of that description those steps must have been taken before the discriminatory act occurred No - vicarious liability arises irrespective of the fact that the employee’s acts were done without the firm’s knowledge or approval.

Question 30

Does the duty to make reasonable adjustments for disabled persons apply to service providers? And if so, to what extent?

Answer 30

Yes. A service provider will be considered to have discriminated against a disabled person if they fail to comply with the duty to make reasonable adjustments. no requirement to fundamentally change the nature of the service being provided.

Question 31

Who do service providers owe their duty to make reasonable adjustments for disabled persons apply to service providers? Does the duty arise if the provider is not aware that an individual is disabled or is likely to suffer disadvantage? Who can bring a claim? Where should the costs of adjustments fall?

Answer 31

The duty is owed to ‘disabled people generally’. The duty is imposed irrespective of whether the service provider is already providing services to disabled people. The provider is therefore required to anticipate the possibility of disabled people using its services and make appropriate adjustments, rather than waiting for a particular disabled person to encounter a problem or raise an issue. Yes. The duty arises even if the service provider is unaware that an individual is disabled or is likely to suffer disadvantage. However, only an individual affected by the failure to make adjustments can bring a claim. The cost of making adjustments cannot be passed onto those using the service.

Question 32

When making a claim against a service provider to the county court, who has the burden of proof?

Answer 32

Initially the burden of proof lies with the claimant to show a prima facie case of discrimination (s 136). The claimant must prove facts from which it could be inferred that discrimination has taken place. The burden then shifts to the defendant. If a prima facie case has been established the court must make a finding that there has been a breach of the legislation unless the defendant is able to prove otherwise.

Question 33

What remedies does the county court have when a service provider has breached the Act? Limit to damages? Aggravated damages? Exemplary damages?

Answer 33

The court can grant any remedy which the High Court could make in tort or judicial review cases. The usual remedy is damages. There is no limit on the damages that can be awarded. This may include financial loss, personal injury and compensation for injury to feelings (most common) Damages may be aggravated if, for example, the defendant’s behaviour has been malicious or oppressive. In rare cases damages may be exemplary. The court may also grant other remedies, such as declarations or injunctions

Question 34

Do partners and members of LLPs count as employees under the Act

Answer 34

Yes. Employees in this context includes partners or those seeking partnership and members or prospective members of Limited Liability partnerships.

Question 35

Under the Act, what is it unlawful for an employer to do? Who does it apply to? What counts as detriment? Financial or physical consequences required?

Answer 35

Under ss 39 and 40 an employer must not: 1.discriminate against or victimise a prospective employee: ∘ in the arrangements made for deciding to whom to offer employment ∘ as to the terms on which employment is offered, or ∘ by not offering employment. 2. harass a person who has applied to it for employment 3. discriminate against or victimise an employee: ∘ as to the terms of employment ∘ in the way it affords access to opportunities for promotion, transfer or training, or for receiving any other benefit, facility or service ∘ by dismissing the employee, or ∘ by subjecting the employee to any detriment. 4.harass an employee Detriment is established if a reasonable employee would or might take the view that they had been disadvantaged in the circumstances in which they had to work. There is therefore no need for the claimant to prove some physical or financial consequences

Question 36

Exceptions for an employer when discrimination will not be unlawful?

Answer 36

Occupational requirements The exception applies where an employer is able to demonstrate that, because of the nature of the job, only people with a particular protected characteristic are able to do it. An employer will only be able to rely on the exception if they can show that the requirement is a proportionate means of achieving a legitimate aim.

Question 37

Does the duty to make reasonable adjustments for disabled persons apply to employers? When does this duty apply? Difference with service providers?

Answer 37

Yes. An employer will be considered to have discriminated against a disabled person if they fail to comply with the duty to make reasonable adjustments. In contrast to service providers, employers are only required to make adjustments if they know or ought reasonably to know that the individual is disabled and likely to be disadvantaged. The duty is not anticipatory; it only applies to particular individuals.

Question 38

Who can make a claim that an employer has breached the act? Steps before court? (2)

Answer 38

Employee or prospective employee 1. employee or prospective employee can submit questions to the employer to help determine whether they have a claim. 2. The employee will then have to participate in a conciliation process through the Advisory, Conciliation and Arbitration Service to see if the claim can be settled. Conciliation must be attempted before the Employment Tribunal will be prepared to accept the claim.

Question 39

Remedies when an employer breaches the act? Purpose of damages Limit to damages? Can an Employment Tribunal order an apologisy?

Answer 39

Compensation is intended to put the employee in the position they would have been in if the wrong had not occurred. The Employment Tribunal can award unlimited compensation. Usually the compensation in employment cases will be for financial loss but injury to feelings can also be included. The Tribunal can also make declarations of the employee’s rights or make a recommendation that the employer must take specified steps for the purpose of obviating or reducing the adverse effect on the employee of any matter to which the proceedings relate. An Employment Tribunal does **not** have power to order that the firm apologises to the applicant.

Question 40

Do employers have a positive duty to prevent sexual harassment of employees?

Answer 40

With effect from 26 October 2024, s 40A Equality Act 2010 places employers under a positive duty to take reasonable steps to prevent the sexual harassment of their employees in the course of their employment. The preventative duty is both anticipatory and ongoing and requires the employer to be proactive. What constitutes ‘reasonable’ steps is judged objectively taking account of the employer’s circumstances

Question 41

What protection to barristers have under the Act?

Answer 41

Barristers are protected from discrimination by members of chambers or clerks of chambers in which they are tenants or pupils. Those who have applied for tenancy or pupillage are also protected. Barristers are also protected from discriminatory treatment at the hands of the solicitors instructing them. Section 47(6) provides that: A person must not, in relation to instructing a barrister: (a) discriminate against a barrister by subjecting the barrister to a detriment; (b) harass the barrister; (c) victimise the barrister.

Question 42

Does the Act allows positive action to be taken in an attempt to address the disadvantages suffered by those who share a protected characteristic?

Answer 42

Yes - although there is no requirement to do so

Question 43

When is it lawful to take positive action in an attempt to address the disadvantages suffered by those who share a protected characteristic?

Answer 43

The first requirement is that the firm must reasonably think that: * persons who share a protected characteristic suffer a DISADVANTAGE connected to the characteristic; or * persons who share a protected characteristic have NEEDS that are different from the needs of those who do not share it; or * PARTICIPATION in an activity by persons who share a protected characteristic is disproportionately low. (The firm must be able to show some basis for its belief) The second requirement is that the action taken by the firm is a proportionate means of achieving one of the following aims: * enabling or encouraging persons who share the protected characteristic to overcome or minimise that DISADVANTAGE; or * meeting those NEEDS ; or * enabling or encouraging persons who share the protected characteristic to PARTICIPATE in that activity.

Question 44

is positive discrimination lawful in recruitment and promotion?

Answer 44

s 159 Equality Act 2010 - not intended to allow positive discrimination, but applies in a ‘tie- breaker’ situation. Section 159 applies where an employer reasonably thinks that persons with a particular protected characteristic are disadvantaged or disproportionately under- represented. In the context of recruitment and promotion, the employer can treat a person with the protected characteristic more favourably than others who do not share that protected characteristic. However, this is only permitted where the person with the relevant characteristic is 'as qualified as’ the others. Qualification in this context is not restricted to having passed particular examinations, but instead relates to the overall suitability of the individual for the job or promotion.

Question 45

Is a solicitor breaches the act, can he be subject to separate disciplinary action for professional misconduct?

Answer 45

Yes. A solicitor who fails to comply with the Act is likely to be subject to separate disciplinary action. The SRA considers this at the higher end of seriousness. The sanctions imposed may be severe.

Question 46

What is the difference between the duties under the Act and principle 6?

Answer 46

Principle 6 requires a solicitor to act in a way that encourages equality, diversity and inclusion. This clearly goes far beyond a direction not to discriminate. It places a positive requirement on the solicitor to ensure that their actions encourage equality, diversity and inclusion. The SRA expects firms to look after the wellbeing of their staff and to protect them from bullying, harassment, discrimination and victimisation. The SRA also encourages those who have experienced or witnessed such behaviour to report it to the SRA Firms should put policies and procedures in place to further equality, diversity and inclusion. should also extend to protecting staff and supporting their wellbeing Other requirements: monitoring, reporting and publishing data on the diversity of its workforce and, if necessary, putting measures in place to improve diversity