Can there ever be a defence for direct discrimination on grounds of age?
Yes, if proportionate means of achieving a legitimate aim (e.g. requiring someone on a building site to be 17 or over)
Indirect pregnancy/ maternity discrimination?
Indirect discrim provisions don’t apply to pregnancy/ maternity - will fall under direct discrim or indirect sex discrim
Disability - what if a PCP, or physical feature, puts a disabled person at a substantial disadvantage?
What if they would be assisted by an auxiliary aid?
Meaning of ‘substantial’?
- Reasonable steps must be taken to avoid the disadvantage.
- Reasonable steps must be taken to provide the aid
‘Substantial’ means more than minor or trivial.
Solicitors as service providers
Unlawful for a service provider to discriminate in which five ways
- by not providing the service
- as to the terms on which service is provided (i.e. can’t provide on less advantageous terms)
- by terminating provision of the service
- by subjecting user to any detriment
- by harassing service user
Solicitors as service providers
Duty to make reasonable adjustments?
- No requirement to fundamentally change the nature of the service being provided
- Owed to ‘disabled people generally’ - provider is required to anticipate the possibility of disabled people using its services, and make reasonable adjustments
- Duty arises even if service provider is unaware that an individual is likely to suffer disadvantage
Solicitors as service providers
Who can bring a claim against a service provider for failure to make reasonable adjustments?
Only the inidividual affected.
Solicitors as service providers
- Where is a claim for discrimination brought?
- Burden of proof?
- County Court
- Initial burden of proof with claimant to prove facts from which it could be inferred that discrimination has taken place - burden then shifts to D to prove otherwise.
Solicitors as service providers
Remedies which court can grant for discrimination by service providers?
- Any remedy which High Court could make in tort or JR cases, usually damages
- No limit on damages that can be awarded
- Claims in respect of service providers usually limited to injury to feelings because C hasn’t suffered financial loss
- May also make a declaration
- Damages can be aggravated by (e.g.) malicious/ oppressive behaviour
Solicitors as employers
Who is covered as employees?
Partners/ those seeking partnership, and members or prospective members of LLPs
Solicitors as employers
When will ‘detriment’ be established?
If a reasonable employee would or might take the view that they had been disadvantaged in the circumstances - no need to prove physical or financial consequences.
Solicitors as employers
First step in making a claim (prior to EC)?
- Employee can submit questions to employer to help determine whether they have a claim
- Addresses imbalance where employer alone is in possession of relevant information
Barristers’ protections under the EA?
- Protected from discrimination by members of chambers, or clerks
- Also protected if they have applied for tenancy/ pupillage
Positive action
Positive action ever lawful?
Yes - subject to certain requirements
Positive action - as service providers and employers (s 158)
Provisions allowing positive action - first requirement (and attached condition)?
Firm must reasonably think that:
a) persons who share a protected characteristic suffer a disadvantage
b) persons who share a protected characteristic have different needs; or
c) participation in an activity by persons who share a protected characteristic is disproportionately low
Firm must be able to show some basis for its belief
Positive action - as service providers and employers (s 158)
Provisions allowing positive action - second requirement?
Mirrors the a) b) c) of the first requirement.
Must be a proportionate means of achieving one of the aims:
a) enabling/ encouraging people to overcome or minimise the disadvantage
b) meeting the particular needs of the people with the protected characteristic; or
c) enabling/ encouraging participation in the relevant activity
Positive action - in respect of recruitment and promotion (s 159)
Steps employers can take in terms of recruitment/ promotion?
Where an employer reasonably thinks persons with a protected characteristic are disadvantaged or disproportionately underrepresented.
* they can treat the person with the protected characteristic more favourably than others, but only if the person is as suitable as the others
* effectively, the fact of a protected characteristic can be used in the context of a ‘tie-breaker’ situation
