Name the three elements for direct discrimination.
1) Comparator
2) Less Favourable (treatment)
3) Protected Characteristic
Explain the comparator requirement for direct discrimination.
Treatment experienced must be different from that of another real/hypothetical person who is not associated with the claimants protected characteristic.
The relevant circumstances of the claimant and the comparator should be broadly the same for an accurate comparison.
Explain the less favourable element of direct discrimination.
- Treatment must be less favourable than the comparator. Broad concept but usually any disadvantage will be deemed sufficient.
- There is no need to have suffered tangible or material loss.
- Test for less favourable treatment is objective - no requirement to show intent. although intent likely affects damages (ie malicious intent may mean aggravated damages are awarded).
Explain the protected characteristic element of direct discrimination.
- protected characteristic must be the cause of the treatment.
- does not need to be sole or main reason for the treatment but merely an influence.
- note that they do not have to belong to the protected characteristic, but the assumption they do is sufficient (eg if the perpetrator believes they belong to a certain racial group).
With regards to discrimination of the protected characteristic of age, where may discrimination not be found?
Where the treatment was a proportionate way of achieving a legitimate aim.
Give an example of indirect discrimination
Employer requiring an employee to work full time.
Unless the employer can objectively justify the need for a full time worker, such a provision may be indirectly discriminatory against a woman with childcare responsibilities.
Define disability discrimination
A person discriminates against a disabled person (DP) where the person treats DP unfavourably because of something arising in consequence of their disability
Define victimisation.
A person (P) victimises another (V) where P subjects V to a detriment because:
a) V does a protected act; or
b) P believes that V has done, or may do, a protected act.
Name the protected acts relating to victimisation (as per s27 Equality Act 2010)
- 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.
Does the victim need to have a protected characteristic in order to receive protection under the victimisation act?
No.
Define harassment
Where an individual is subjected to unwanted conduct having the effect of violating the individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.
Define unwanted for the purposes of the harassment definition in the equality act 2010.
The unwanted conduct must:
- relate to a protected characteristic (except pregnancy, 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.
Name and briefly explain the three requirements to make reasonable adjustment for disabled people.
1) provision criterion or practice - where provision, criterion or practice puts disabled person at substantial disadvantage in comparison to those not disabled, reasonable steps must be taken to avoid the disadvantage.
2) physical features - where the disabled person, but for provision of auxiliary aid, would be at a substantial disadvantage comparable to those who are not disabled, reasonable steps must be taken to avoid disadvantage.
3) provision of auxiliary aid - where a disabled person would, but for provision of auxiliary aid, be at a substantial disadvantage comparable to persons who are not disabled, the requirement is reasonable steps must be taken to provide the auxiliary aid.
(note ‘substantial’ for these purposes means more than minor or trivial).
On making a claim under the Act the burden of proof lies with…
the claimant to show a prima facie case of discrimination (s 136 Equality Act 2010).
List the forms of discrimination outlawed by the Equality Act 2010.
a) direct discrimination
b) indirect discrimination
c) disability discrimination
d) victimisation
f) harassment
Can employers be vicariously liable for discrimination by their employees (carried out in the course of their employment)?
Yes.
Does the Equality Act 2010 apply to solicitors’ personal lives?
No but sol will likely be in breach of professional conduct rules.
Act only applies in certain instances ( eg during the provision of legal services and in the workplace).
